tern, 

#333 


Duke  University  Libraries 

The  great  speec 
Conf  Pam  12mo  #393 


4 

THE  FLOWERS  COLLECTION 


THE  GREAT  SPEECH 

OP 


Mm,  A.  II.  STEPHENS, 

DELIVERED     BEFORE 

THE.  GEORGIA     LEGISLATURE, 

On  Wednesday  Night,  March  16th,  1864, 

TO    WHICH  IS    ADDED     EXTRACTS    PROM 

GOV.  BROWN'S  MESSAGE 

TO  THE- 

GEORGIA  LEGISLATURE. 


At  the  hour  of  n\  (/clock,  P.  M.,  the  Hall  had  been  fill- 
to  its  utmost  capacity  by  members  of  the  Legislature  and 
citizens  generally,  and  as  the  vast  assemblage  within  saw 
the  beloved  form  of  Georgia's  proud  and  noble  son,  every 
eye  grew  bright  with  joy,  and  a  hearty  and  unanimous  ap- 
plause bid  him  welcome. 

Mr.  Stephens  ascended  the  Speaker's  stand  and  spoke  as 
follows  : 
Gentlemen  of  the  Senate  and  House  of  Rejtresentatives  : 

In  compliance  with  your  request,  or  at  least  with  that  of 
a  large^portion  of  your  respective  bodies,  I  appear  before 
you  to-night  to  speak  of  the  state  of  public  affairs.  Never, 
perhaps,  before,  have  I  riseu  to  address  a  public  audience 
under  circumstances  of  so* much  responsibility,  and  never 
did  I  feel  more  deeply  impressed  with  the  weight  of  it. — - 
Questions  of  the  most  momentous  importance  are  pressing, 
upon  you  for  consideration  and  action."  Upon  these  I  am 
to  address  you.  Would  that  my  ability,  physically,  and 
in  all  other  respects,  wero  commensurate  with  the  magni- 


f^n 


2 

tude  of  the  occasion.  We  are  in  the  midst  of  dangers  and 
perils.  Dangers  without  and  dangers  within,  Scylla  oii 
the  one  side  and  Charybdis  on  the  other.  War  is  being 
waged  against  us  by  a  strong,  unscrupulous  and  vindic- 
tive foe  ;  a  war  for  our  subjugation,  degradation  and  ex- 
termination. From  this  quarter  threaten  the  perils  with- 
out. Those  within  arise  from  questions  of  policy  as  to  the 
best  means,  the  wisest  and  safest,  to  repel  the  enemy, 
achieve  our  independence,  to  maintain  and  keep  secure, our 
rights  and  liberties.  Upon  the  decision  of  these  questions, 
looking  to  the  proper  development  of  our  limited  resources, 
wisely  and  patriotically,  so  that  their  entire  efneiency  may 
be  exerted  in  our  deliverance,  with,  at  the  same  time,  a 
watchful  vigilance  to  the  safety  of  the  citadel  itself,  as 
much  depends  as  upon  the  skill  of  oUr  comma  rulers  and  the 
valor  of  our  citizen  soldiers  in  the  field.  Everything  dear 
to  us  as  freemen  is  at  stake.  An  error  in  judgment,  though 
springing  from  the  most  patriotic  motives,  whether  in 
councils  of  war  or  councils  of  state,  may  be  fatal.  He,there- 
fore,  who  rises  under  such  circumstances  to  offer  words  of 
advice,  not  only  assumes  a  position  of  great  responsibility, 
but  stands  on  dangerous  ground.  Impressed  profoundly 
with  such  feelings  and  convictions,  I  should,  shrink  from 
the  undertaking  you  have  called  me  to,  but  for  the  strong 
consciousness  that  where  duty  leads  no  one  should  ever  fear 
to  tread.  Great  as  are  the  dangers  that  threaten  us,  peril- 
ous as  is  our  situation — and  I  do  not  intend  fro  overstate  or 
understate,  neither  to  awaken  undue  apprehension,  or  to 
excite  hopes  and  expectations  never  to  be  realized — peril- 
ous, therefore,,  as  our  situation  is,  it  is  far,  far  from  being 
desperate  or  hopeless,  and  I  feel  no  hesitation  in  saying  to 
you,  in  all  frankness  and  candor,  that  if  we  aire  'rue  to  our- 
selves, and  true  to  our  cause,  all  will  yet  be  well. 

In  the  progress  of  the  war  thus  far,  it  is  true  the?e  is 
much  to  be  seen  of  suffering,  of  sacrifice  and  ot  'desolation  ; 
much  to  sicken  the  heart  and  cause  a  blush  for  civilization 
and  Christianity.  Cities  have  been  taken,,  towns  have  been 
sacked,  vast  amounts  of  property  have  been  pureed,  fields 
have  been  laid  waste,  records  have  been  d.<  Stroyed,  churches 
have  been  desecrated,  women  and  children  have  been  driv- 
en from  their  homes,  unarmed  men  have  been  put  to  death, 
States  have  been  overrun  and  whole  populations  made  to 
groan  under  the  heel  of  despotism;  all  these  rungs  are 
seen  and  felt,  but  in  them  nothing  is  to  b*   Been  to  cause 


dismay,  much  less  despair  ;  these  deeds  of  ruin  and  savage 
barbarity  have  been  perpetrated  only  on  the  outer  borders, 
i3n  the  coast,  and  on  the  line  of  the  rivers,  where,  by  the  aid 
of  their  ships  of  war  and  gunboats,  the  enemy  has  had  the 
advantage  ;  the  great  breadth  of  the  interior — the  heart  of 
our  country — has  never  yet  been  reached  by  them  ;  they 
have  as  yet,  after  a  struggle  of  near  three  years,  with  un- 
limited means,  at  a  cost  of  not  less  than  four  thousand- mil- 
lions of  dollars  (bow  much  more  is  unknown)  and  hundreds 
of  thousands  of  lives,  been  able  only  to  break  the  outer  shell 
of  the  Confederacy.  The  only  signal  advantages  they  have 
as  yet  gained  have  been  on  the  water,  or  where  their  land 
and  naval  forces  were  combined.  That  they  should  have 
gained  advantages  under  such  circumstances,  is  not  a  mat- 
ter of  much  surprise.  Nations  in  war,  like  individual  men 
or  animals,  show  their  real  power  in  combat  when  they 
stand  upon  the  advantages  that  nature  has  given  them,  and 
fight  on  their  own  ground  and  in  their  own  element.  The 
lion,  though  king  of  the  forest,  cannot  contend  successfully 
with  the  shark  in  the  water.  In  no  conflict  of  arms  away 
from  gunboats,  during  the  whole  war,  since  the  first  battle 
of  Manassas  to  that  of  Ocean  Pond,  have  our  gallant  sold- 
iers failed  of  victory  when  the  numbers  on  each  side  were 
at  all  equal.  The  farthest  advance  into  the  interior  from 
the  base  and  protection  of  their  gunboats,  either  on  the  coast 
or  the  rivers,  that  the  enemy  has  been  able  to  make  for 
three  years  was  the  late  movement  from  Vicksburg  to  Me- 
ridian, and  the  speedy  turn  of. that  movement  shows  noth- 
ing more  clearly  than  the  difficulties  and  disadvantages  at- 
tending all  such  ;  these  things  should  be  noted  and  mark- 
ed in  considering  our  present  situation  and  the  prospects  of 
the  future.  In  all  our  losses  up  to  this  time,  no  vital  blow 
has  ever  been  given  either  to  our  cause  or  our  energies. — 
We  still  hold  Richmond,  after  repeated  efforts  to  take  it, 
both  by  force  and  ^strategy.  We  still  hold  on  the  Gulf, 
Mobile,  and  on  the  Ocean  front,  Wilmington,  Savannah 
and  Charleston.  These  places  have  been,  and  are  still  held 
against  the  most  formidable  naval  armament  ever  put 
afloat. 

At  Charleston  the  enemy  seem  to  direct  all  their  power, 
land  and  naval,  that  can  be  brought  to  bear  in  combination 
— all  their  energy,  rancour  and  vengeance.  4< Carthago  de- 
lendaest"  is  their  vow  as  to  this  devoted  city.  Every  means 
that  money  can  command  and  ingenuity  suggest,  from  the 


hugest  engines  of  war  never  before  known  to  the  fiendish 
resort  of  Greek  fire,  have  been  and  are  being  applied  for  its 
destruction.     For  nearly  nine  months  the  city,  under  the 
skill  of  our  consummate  commander,  his  subordinates,  and 
the  heroic  virtues  of  our  matchless  braves  in  the  ranks,  still 
holds  out  against  all  the  disadvantages  of  a  defence  without 
suitable  naval  aid.     That  she  may  eontinue  to  hold  out, 
and  her  soil  never  be  polluted  by  the  unhallowed  foot  print 
of  her  vandal  besiegers,  is,  of  course,  the  earnest  wish  of 
all.     But  even  if  so  great  a  disaster  should  happen  to  us  as 
the  loss  of  Charleston,  be  not  dismayed,  indulge  no  senti- 
ment akin  to  that  of  despair— Charleston  is  not  a  vital  part. 
We  may  lose  that  place,  Savannah,  Mobile,  Wilmington, 
and  even  Richmond,  the  seat  of  government,  and  still  sur- 
vive.    We  may  lose  all  our  strong  places — the  enemy  may 
traverse  our  great  interior  as  they  have  lately  done  in  Mis- 
sissippi, and  we  may  still  survive.    We  should,  even  under 
such  calamities  j  be  no  worse  off  than  our  ancestors  were  in 
their  struggle  for    independence.     During  the  time  that 
< 'tried  men's  souls"  with  them,   every  city  on  the  coast, 
from  Boston  to  Savannah,  was  taken  by  the  enemy.  Phila- 
delphia was  taken,  and  Congress  driven  away.     South  Car- 
olina, North  Carolina,  portions  of  Georgia,  Virginia,  and 
other  States,  were  overrun  and  occupied  by  the  enemy  as 
completely  as  Kentucky,  Missouri,  Louisiana,  and  Tennes- 
see are  now.     Take  courage  from  the  example  of  your  an- 
cestors— disasters  caused  with  them  nothing  like  dismay  or 
despair — they  only  aroused  a  spirit  of  renewed  energy  and 
fortitude.     The  principles  they  fought  for,  suffered  and  en- 
dured so  much  for,  are  the  same  for  which  we  are  now 
struggling — State   Eights,    State   Sovereignty,    the   great 
principles  set  forth  in  the  Declaration  of  Independence — the 
right  of  every  State  to  govern  itself  as  it  pleases.     With 
the  same  wisdom^  prudence,  (orecaste  and  patriotism,  the 
same  or  equal  statesmanship  on  the  part  of  our  rulers  in 
directing  and  wielding  our  resources,  our  material  of  war, 
that  controlled  public  affairs  at  that  time,  in  the  camp  and 
in  the  cabinet,  and  with  the  same  spirit  animating  the 
breast  of  the  people,  devotion  to  liberty  and  right,  hatred 
of  tyranny  and  oppression,   affection  for  the  cause  for  the 
cause's  sake  ;  with  the  same  sentiments  and  feelings  on  the 
part  of  rulers  and  people  in  these  days  as  we're  in  those,  we 
might  and  may  be  overrun  as  they  were  ;  our  interior  may 
be  penetrated  by  superior  hostile  armies,  arid  our  country 


laid  waste  as  theirs  was,  but  we  can  never  be  conquered, 
as  they  never  could  be.     The  issues  of  war  depend  quite  as 
much  upon  Statesmanship  as  Generalship  ;  quite  as  much 
upon  what  is  done  at  the  council  board  as  upon  what  is  done 
in  the  field.     Much  the  greater  part  of  all  wars,  is  busi- 
ness—plain, practical  every  day  life  business  ;  there  is  in  it 
no  art  or  mystery  or  special  knowledge,  except  good,  strong, 
common  sense— this  relates  to  the  finances,  the  quarter- 
master's  and    commissary's   departments,   the   wavs   and 
means  proper— in  a  word  to  the  resources  of  a  country  and 
its  capacities  for  war.     The  number  of  men  that  can  be 
spared  from  production,  without  weakening  the  aggregate 
strength — the  prospect  of  supplies,  subsistence,  arms  and 
munitions  of  all  kinds.     It  is  as  necessary  that  men  called 
out  should  be  armed,  clothed,  shod  and'  fed,  as  that  they 
should  be  put  in   the  field— subsistence  is  as  essential  as 
men.  ^  At  present  we  have  subsistence  sufficient  for  the 
year,  if  it  is  taken  care  of  and  managed  with  economy. — 
Upon  a  moderate  estimate,  one  within  reasonable  bounds*  the 
tithes  of  wheat  and  cprn  for  last  year  were  not  less,  in  the 
States- East  of  the  Mississippi,  (to  say  nothing  of  the  other 
side,)  than  eighteen  million  bushels.     Kentucky  and  Ten- 
nessee are  not  included  in  this  estimate.     This  would  bread 
an  army  of  five  hundred  thousand  men  and  one  hundred 
thousand  horses  for  twelve  months,  and  leave  a  considera- 
ble margin  for  waste  or  loss.     This  we  have  without  buy- 
ing or  impressing  a  bushel  or  pound.     Nor  need  a  bushel 
of  it  be  lost  on  account  of  the  want  of  transportation  from 
points  at  a  distance  from  railroads.     At  such  places  it  could 
be  fed  to  animals,  put  into  beef  and  pork,  and  thus  lessen 
the  amount  of  thes.e  articles  of  food  to  be  bought.     Upon  a 
like  estimate  the  tithe  of  meat  for  the  last  year  will  supply 
the  army  for  at  least  sixlmonthg — rendering  the  purchase 
of  this  article  necessary  for  only  half  the  year— the  surplus 
in  the  country,  over  and  above  the  tithes,  is  ample  to  meet 
the  deficiency.     All  that  is  wanting  is  men  of  business  ca- 
pacity, honesty,   integrity,   economy  and   industry   in  the 
management  and'  control  of  that  department.     There  need 
be  no  fear  of  the  want  of  subsistence  this  year,  if  our  offi- 
cials do  their  duty.     But  how  it  will  be  next  year,  if  the 
policy  adopted  by  Congress,   at  its  late  session,  is  carried 
out,  no  one  can  safely  venture  to  say. 

#  This  brings  me  to  the  main  objects  of  this  address,  a  re- 
view of  those  Acts  of  Congress  to  which  your  attention  has 


6 


\ 


been  specially  called  by  the  Governor,  and  on  which  your 
action  is  invoked — these  are,  the  currency,  the  military  and 
the  habeas  corpus  suspension  acts.  It  is  the  beauty  of  our 
system,  of  government,  that  all  in  authority  are  responsible 
to  the  people.  It  is,  too,  always  more  agreeable  to  approve 
than  to  disapprove  what  our  agents  have  done.  But  in 
grave  and  important  matters,  however  disagreeable  or  even 
painful  it  may  be  to  express  disapproval,  yet  sometimes  the 
highest  duty  requires  it.  No  exceptions  should  be  taken 
to  this  when  it  is  done  in  a  proper  spirit,  and  with  a  view 
solely  for  the  public  welfare.  In  free  governments  men 
will  differ  as  to  the  best  means  of  promoting  the  public 
good.  Honest  differences  of  opinion  should  never  beget  ill 
feelings,  or  personal  alienations.  The' expressions  of  differ- 
ences of  opinion  do  no  harm  when  truth  alone  is  the  object 
on  both  sides.  Our  opinions  in  all  such  discussions  of  pub- 
lic affairs  should  be  given  as  from  friends  to  friends,  as  from 
brothers  to  brothers,  in  a  common  cause.  We  are  all 
launched  upon  the  same  boat,  and  must  ride  the  storm  or 
go  down  together.  Disagreements  should  never  arise,  ex- 
cept from  one  cause^ — a  difference  in  judgment,,  as  to  the 
best  means  to  be  adopted,  or  course  to  be  pursued,  for  the 
common  safety.  This  is  the  spirit  by  which  I  am  actuated 
in  the  comments  I  shall  make  unpon  these  Acts  of  Con- 
gress. 

As  to  the  first  two  of  these  measures,  the  Tax  Act  and 
Funding  Act,  known  together  as  the  financial  and  currency 
measures,  I  simply  say,  in  my  judgment,  they  are  neither 
proper,  wise  or  just.  Whether  in  the  midst  of  conflicting 
views,  in  such  diversity  of  opinion  and  interest  anything 
better  could  be  obtained,  I  know  not — perhaps  not. — 
With  that  view  we  may  be  reconciled  to  what  we  do  not 
approve.  It  is  useless  now  to  go  into  discussions  of  how 
better  measures  might  have  been  obtained,  or  how  bad  ones 
might  have  been  avoided — the  whole  is  a  striking  illustra- 
tion of  the  evils  attending  first  departures  from  principle — 
the  "facilis  descencus  Averno."  Error  is  ever  the  prolific 
source  of  error.  Our  present  financial  embarrassments  had 
their  origin  in  a  blunder  at  the  beginning,  but  we  must 
deal  with  the  present,  not. the  past.  These  two  Acts  make 
it  necessary  for  you  to  change  your  legislation  to  save  the 
State  from  loss.  As  to  the  course  you  should  adopt  to  do. 
this,  I  know  of  none  better  than  that  recommended  by  the 
Governor.  His  views  and  suggestions  on  this  point  seem, 
to  be  proper  and  judicious. 


The  Military  Act  by  which  conscription  is  extended  so  a* 
to  embrace  all  between  the  ages  of  seventeen  and  fifty,,  and 
by  which  the  State  is  to  be  deprived  of  so  much  of  its  labor 
aml.stripped  of  the  most  efficient  portion  of  her  enrolled 
militia,  presents  a  much  graver  question.     This  whole  sys- 
tem of  conscription  I  have  looked  upon  from  the  beginning 
as  wrong,  radically  wrong  in  principle  and  policy.     Con- 
trary opinions,  however,  prevailed.     But  whatever,  differ- 
ent ot  opinion  may  have  been  entertained  as  to  the  con- 
stitutionality of  the  previous  Conscript  Acts,  it  seems  clear 
to  my  mind  that  but  little  difference  can  o*ist  as  to  the  un- 
eonstij  nationality  of  this  late  act.     The  act  provides  for  the 
organizing  of  troops  of  an  anomalous  character— partly  as 
militia  and  partly  as  a  portion  of  the  regular  armies.     But 
in  fact,  they  are  to  be  organized  neither  as  militia  or  part 
of  the  regular  army.    We  have  but  two  kinds  of  forces,  the 
regular  army  and  the  militia— this  is  neither.     The  men 
arefb  he  raised  as  conscripts  for  the  regular  forces,  while 
their  officers  are  to  be  appointed  as  if  they  were  militia.    If 
they  were  intended  as  militia,  they  should  have  been  called 
out,  through  the  Governor,  in  their  present  organizations 
—it  as  regular  forces  they  cannot  be  officered  as  the  act  pro- 
vides.    It  is  most  clearly  unconstitutional.     Who  is  to  com- 
mission these  officers?    .The  Governor  cannot,  for  they  are 
taken  from  under  his  control  ;  the  President  cannot  consti- 
tutionally do  it,  for  he  can  commission  none  except  by  and 
wuh  the  advice  and  consent  of  the  Senate.     It  is  for  you  to 
say  whether  you  will  turn  over  these  forces,  and  allow  them 
to  be  conscripted,   as  is  provided,   leaving   the  question  of 
constitution  the  courts,  or  whether  you  will  hold 

them  in  view  of  agricultural  and  other  interests,  or  for  the 
execution  of  your  laws,  and  to.be  called  out  for  the  public 
defense  in  case  of  emergency  by  the  Governor  when  he  sees 
the  necessity,  or  when  they  are  called  for  as  militia  by  the 
President.  The  Act  upon  its  face,  in  its  provisions  for  de- 
tails, seems  to  indicate  that  its  object  is  not  to  put  the  whole 
ot  them,  in  the  field.  Nothing  could  be  more  ruinous  to  our 
cause  if  such  were  the  object  and  intention  and  should  it 
ever  be  carried  into  effect.  For.  if  all  the  white  labor  of  the 
country,  from  seventeen  to  fifty— except  the  few  exceptions 
stated—be  called  out  and  kept  constantly  in  the  field,  we 
must  fail,  epontr  or  later,  for  want  of  subsistence  and  other 
essential  supplies.  To  wage  war  successfully,  men  at  home 
are  as  necessary  as  men  in  the  field.     Those  in  the  field 


inust  be  provided  for,  and  their  families  at  home  must  he 
provided  for.  In  my  judgment,  no  people  can  successfully 
carry  on  a  long  war,  with  more  than  a  third  of  its  arms- 
bearing  population  kept  constant] v  in  the  field,  especially 
if  cut  off  by  blockade,  they  are  thrown  upon  their  own  in- 
ternal resources  for  air  necessary  supplies,  subsistence  and 
munitions  of  war.  This  is  a  question  of  Arithmetic  on  well 
settled  problems  of  political  economy.  But  can  we  succeed 
against  the  hosts  of  the  enemy  unless  all  able  te'bear  arms 
up  to  fifty  years  of  age  are  called  to,  and  kept  in  the  field  ? 
Yes,  a  thousand  times,  yes,  I  answer,  with  proper  and  skill- 
ful management.  If  we  cannot  without  such  a  call,  we  can- 
not with  it,  if  the  war  last  long.  The  success  of  Greece 
against  the  invasion  by  Persia — the  success,  of  the  Nether- 
lands against  Philip— the  success  of  Frederic  against  the 
allied  powers  of  Europe— the  success  of  the  Colonies,  against 
Great  Britain,  all  show  that  it  can  be  done.  If  our  only 
hope  was  in  matching  the  enemy  with  equal  numbers,  then 
our  case  would  be  desperate  indeed.  Superior  numbers  is 
one  of  the  chief  advantages  of ^the  enemy.  We  must  avail 
ourselves  of  our  advantages.  We  should  not  rely  for  suc- 
cess by  playing  into  his  hand.  An  invaded  people  have 
many  advantages  that  may  be  resorted  to  to  counterbalance 
superiority  of  numbers.  These  should  be  studied,  sought 
and  brought  into  active  co-operation.  To  secure  success, 
brains  must  dp  something  as  well  as  muskets. 

Of  all  the  dangers  that  threaten  our  ultimate  success,  I 
consider  none  more  iminent  than  the  policy  embodied  in  this 
Act,  if  the  object  really  be,  as  its  broad  terms  declare,  to  put 
and  keep  in  active  service  all  between  the  ages  of  seventeen 
and  fifty,  except  the  exempts  named.  On  that  line  we  will 
most  assuredly,  sooner  or  later,  do  what  the  enemy  never 
could  do,  conquer  ourselves.  And  if  such  be  not  the  object 
of  the  A.ct — if  it  is  only  intended  to  conscript  men  not  in- 
tended for  service,  not  with  a  view  to  fill  the  army,  but  for 
^the  officials  to  take  charge  of  the  general  labor  of  the  coun- 
try and  the  various  necessary  avocations  and  pursuits  of 
life,  then  the  Act  is  not  only  wrong  in  principle  but  exceed- 
ingly dangerous  in  its  tendency. 

I  come  now  to  the  last  of  these  Acts  of  Congress.  The 
suspension  of  the  writ  of  habeas  corpus  in  certain  cases. — 
This  is  the  most  exciting,  as  it  is  by  far  the  most  important 
question  before  you.  Upon  this  depends  the  question, 
whether  the  courts  shall  be  permitted  to  decide  upon  the 


constitutionality  of  the  late  Conscript  Act,  should  you  sub- 
mit that  question  to  their  decision,  and  upon  it  also  depend 
other  great  essential  rights  enjoyed  by  us  as  freemen.  This 
Act,  upon  its  face,  confers  upon  the  President,  the' Secretary 
of  War,  and  the  General  commanding  in  the  Trans-Missis- 
sippi department,  (the  two  latter  acting  under  the  control 
and  authority  of  the  President)  the  power  to  arrest  and  im- 
prison any  person  who  may  %  simply  charged  .with  certain 
acts,  not  all  of  them  even  crimes  under  any  law  ;  and  this 
is  to  be  done  without  any  oath  or  affirmation  alledging 
probable  cause  as  to  the  guilt  of  the  party.  This  is  attempt- 
ed to  be  done  under  that  clause  of  the  Constitution  which 
authorizes  Congress  to  suspend  the  privilege  of  the  writ  of 
habeas  corpus  in  certain  cases. 

In  my  judgment,  this  act  is  not  only  unwise,  impolitic 
and  unconstitutional,  but  exceedingly  dangerous  to  public 
liberty.  Its  unconstitutionality  does  not  rest  upon  \he  idea 
that  Congress  has  not  got  the  power  to  suspend^the  privi- 
lege of  this  writ,  nor  upon  the  idea  that  the  power  to  sus- 
pend it,  is  an  implied  one,  or  that  clearly  mplied  powers 
are  weaker  as  a  class  and  subordinate  to  others  positively 
and  directly  delegated. 

I  do  not  understand  the  Executive  of  this  State  to  put  his 
argument  against  this  Act  upon  any  such  grounds.  He 
simply  states  a  fact,  as  it  most  clearly  is,  that. the  power  to 
suspend  at  all  is  an  J  implied  power.  There  is  no  positive, 
direct  power  delegated  to  do  it.  The  power%  however,  is 
clear  and  clear  only  by  implication.  The  \anguage  of  the 
Constitution,  that  "the  privilege  of  the  writ  of  habeas  cor- 
pus shall  not  be  suspended  unless,  when  in  cases  of  rebel- 
lion or  invasion,  the  public  safety  may  require  it,"  clearly 
expresses  the  intention  that  the  power  may  be  exercised  in 
the  cases  stated  ;  but  it  does  so  by  implication  only,  just 
as  if  a  mother  should  say  to  her  daughter,  you  shall  not  go 
unless  you  ride.  Here  the  permission  and  authority  to  go 
is  clearly  given.  This  and  this  only,  I  understand  the 
'Governor  to  mean^when  he  speaks  of  the  power  being  an 
implied  one.  He  raises  no  question  aR  to  the  existence  of 
the  power 'or  its  validity  when  rightfully  exercised,  but  he 
maintains,  as  I  do,  that  its' exercise  must  be  controlled  by 
all  other  restrictions  in  the  Constitution  bearing  upon  its 
exercise.  Two  of  these  are  to  be  found  in  the  words  accom- 
panying the  delegation.  It  can  never  be  exercised  except 
ia  rebellion  or  invasion.     Other  restrictions  are  to  be  found 


10 

io  other  parts  of  the  Constitution.  In  the  amendments  to 
the  Constitution  adopted  after  the  ratification  of  the  words 
as  above  quoted.  These  amendments  were  made,  as  is  ex- 
pressly declared  in  the  preamble  to  them,  to  add  "further 
declaratory  and  restrictive  clauses,"  to  prevent  misconstruc- 
tion or  abuse  of  the  powers  previously  delegated.  To  un- 
derstand all  the  restrictions,  therefore,  thrown  around  the 
exercise  pf  this  power  in  the  Constitution,  these  additional 
"restrictive  clauses"  must  be  read  in  conjunction  with  the 
original  grant,  whether  t^at  was  made  positively  and  di- 
rectly or  by  implication  only.  These  instructions,  among 
other  things,  declare  that  "no  person  shall  be  deprived  of 
life,  liberty  or  property  without  due  process  of  law,"  and 
that  the  nght  of  the  people  to  be  secure  in  their  persons, 
houses,  paper*  and  effects,  against  unreasonable  searches 
and  seizures  shall  not  be  violated,  and  no  warrants  shall 
issue  but  upon  probable  cause,  supported  by  oath  or  affir- 
mation, and  particularly  describing  the  place  to  be  search- 
ed, and  the  person  or  thing  to  be  seized." 

All  admit  that  under  the  clause  as  it  stands  in  the  origi- 
nal grant,  with  the  restrictions  there  set  forth,  the  power 
can  be  rightfully  exercised  only  in  cases  of  rebellion  or  in- 
vasion^ "With  these  additional  clauses,  put  in  as  further 
restrictions  to  prevent  the  abuse  of  powers  previously  dele- 
gated, how  is  this  clause  conferring  the  power  to  suspend 
the  privilege  of  the  writ  of  habeas  corpus,  now  to  read  ?  In 
this  way,  and  in  this  way  only  :  "The  privilege  of  the  writ 
of 'habeas  corpus  .shall  not  be  suspended,  unless  when  in 
cases  of  rebellion  or  invasion  the  public  safety  may  require 
it."  And  lit)  person  "shall  be  deprived  of  life,  liberty  or 
property-  w ithout  due  process  of  law. ' '  And  further,  "The 
right  of  the  people  to  be  secure  in  their  persons,  houses, 
pipersand  effects  againstunreasonable  searches  andseizures, 
shall  not  be  violated,  and  no  warrants  shall  issue  but  upon 
probable  cause,  supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  place  to  be  searched  and  the  persons 
or  things  to  be  seized." 

The  attempted  exercise  of  the  power  to  suspend  the  priv- 
ilege of  the  writ  of  habeas  corpus  in  this  Acts,  is  in  utter 
disregard  in  the  very  face  and  teeth  of  these  restrictions,  as 
much  so  as  a  like  attempt  in  time  of  profound  peace  would 
be  in  disregard  of  the  restrictions  to  cases  of  rebellion  and 
invasion,  as  the  Constitution  was  originally  adopted.  It 
.attempts  to  provide  for  depriving  persons  "of  liberty,  with- 


11 

■out  due  process  of  *  law."  It  attempts  to  annul  and  set  at 
naught  the  great  constitutional  "right"  of  the  people,  to 
be  secure  in  their  persons  against  "unreasonable  seizures." 
It  attempts  to  destroy  and  annihilate  the  bulwark  of  per- 
sonal liberty,  secured  in  our  great  chart  to  the  humblest  as 
well  as  the  highest,  that  "no  warrants  shall  issue  but  upon 
probable  cause,  supported  by  oath  or  affirmation,"  and 
"particularly  describing  the  person  to  be  seized."  Nay 
more,  it  attempts  to  change  and  transform  the  distribution 
of  powers  in  our  system  of  gorernmeut.  It  attempts  to  de- 
prive the  Judiciary  Department  of  its  .appropriate  and  le- 
gitimate functions,  and  to  confer  them  upon  the  President, 
the  Secretary  of  War,  and  the  General  Officer  commanding 
the  Trans-Mississippi  Department,  or  rather  to  confer  them 
entirely  upon  the  President,  lot  those  subordinates  named 
in  the  Act  hold  their  places  at  his  will,  and  in  arrests  un- 
der this  Act  are  to  be  governed  by  his  orders.  This,  by 
the  Constitution,  never  can  be  done.  Ours  is  not  only  a 
government  of  limited  powers,  but  each  department,  the 
legislative,  executive  and  judicial,  are  separate  and  distinct. 
The  issuing  of  warrants,  which  are  nothing  but  orders  for 
arrests  against  civilians  or  persons  in  civil  life,  is  a  judicial 
function.  The  President,  under  the  Constitution  has  no 
power  to  issue  any  such.  As  commander-in-chief  of  the 
land  and  naval  forces,  and  the  militia  when  in  actual  ser- 
vice, he  may  order  arrests  for  trials  before  Courts  Martial, 
According  to  the  rules  and  articles  of  war.  Bur  he  is  cloth- 
ed with  no  such  power  over  those  not  in  the  military  ser- 
vice, and  not  subject  to  the  rules  and  articles  of  war.  This 
Act  attempts  to  clothe  him  with  judicial  functions,  ifYid  in 
a  judicial  character  to  do  what  no  judge,  under  the  Consti- 
tution, can  do  :  issue  orders  or  warrants  for  arrests,  by 
which  persons  are  to  be  deprived  of  their  liberty,  imprison- 
ed, immured  in  dungeons,  it  may  be  without  any  oath  or 
affirmation,  even  as  to  the  probable  guilt  of  the  party  ac- 
cused or  charged  with  any  of  the  offences  or  acts  stated. 
This,  under  the  Constitution,  in  my  judgment,  cannot  be 
done.  Congress  can  confer  no  such  power  upon  our  Chief 
Magistrate.  Thei%  is  no  such  thing  known  in  this  country 
as  political  warrants,  or  "letters  de  catchet."  This  Let 
attempts  to  institute  this  new  order  of  things  so  odious  to 
our  ancestors,  and  so  inconsistent  with  constitutional  lib- 
erty. 

This  act,  therefore,  is  unconstitutional,  not  because  Con- 
gress has  not  power  to  suspend  the  privileges  of  the  writ  of 


12 

habeas  corpus,  but  because  they  bave  no  power  to  do  the  thing 
aimed  at  in  this  attempted  exercise  of  it.  Congress  can 
suspend  the  privilege  of  the  writ — the  power  is  clear  and 
unquestioned — neither  is  the  power,  as  it  stands,  objeetion- 
■able.  Georgia,  in  the  Convention,  voted  against  the  clause 
Conferring  it  in  the  Constitution  as  originally  adopted— 
that,  perhaps,  was  a  wise  and  prudent  vote.  But,  with 
the  restrictions  subsequently  adopted,  there  can  be  no  well 
grounded  objection  to  it.  It  is,  under  existing  restrictions, 
a  wise  power.  In  time  of  war,  in  cases  of  rebellion  or  in- 
vasion, it  may  often  be  necessary  to  exercise  it — the  public 
safety  may  require  it.  I  am  not  prepared  to  say  that  the 
public  safety  may  not  require  it  now.  I  am  not  informed 
of  the  reasons  which  induced  the  President  to  ask  the  sus- 
pension of  the  privilege*  of  the  writ  at  this  time,  or  Con- 
gress to  undertake  its  suspension  as  provided  in  this  Act. 
1,  however,  know  of  no  reasons  that  require  it,  and  have- 
heard  of  none.  But  in  the  exercise  of  an  undisputed  pow- 
er, they  have  attempted  to  dp  just  what  cannot  be  done — 
to  authorize  illegal  and  unconstitutional  arrests — there  can 
be  no  suspension  of  the  writ,  under  our  system  of  govern- 
ment, against  unconstitutional  arrests — there  can  be  no 
suspension  allowing,  or  with  a  view  to  permit  and  author- 
ize, the  seizure  of  persons  without  warrant  issued  by  a  ju- 
dicial officer  upon  probable  cause,  supported  by  oath  or  af- 
firmation— the  whole  Constitution  must  be  read  together, 
an<J  so  read  and  construed  as  that  every  part  and  clause 
shall  stand  and  have  its  proper  effect  under  the  restrictions 
of  other  cause's. 

If  any  conflict  arises  between  clauses  in  the  original  and 
the  amendments  subsequently  made,  the  original  must 
yield  to  the  amendments  a»  a  will,  previously  made,  always 
yields  to  a  modifications  of  a  codicil.  Such,  of  course,, 
was  the  condition  of  the  old  Constitution  with  its  amend- 
ments, when  the  States  of  this  Confederacy  adopted  it— 
and  it  was  adopted  by  these  States  wi|h  the  meaning,  force 
and  effect  it  then  had.  In  construing,  therefore,  those  parts; 
of  the  old  Constitution  which  we  adopted,  we  stand  just 
where  we  should  have  stood  under  like  circumstances,  un- 
der it.  Witlrthese  views  it  will  clearly  appear  that,  under 
our  Constitution,  Courts  cannot  be  deprived  of  their  right 
or  he  relieved  of  their  duty  to  enquire  into  the  legality  of 
all  arrests  except  in  cases  arising  in  the  .land  and  naval- 
forces  or   in  the  militia,  when   in  actual  service — for  the 


13 

government  of  which  a  different  provision   is  made  in  the 
Constitution.     Under   a  Constitutional  suspension    of  the 
privilege  of  the  writ  all  the  Courts  could  do,  would  be  to 
see   that   tie  party  was   legally  arrested  and   held — upon 
proper  warrant — upon  probable  cause,  supported  by  oatfi 
or   affirmation  setting   forth  a  crime  of  some  violation  of 
law.     Literally  and  truly  then  the  only  effect  of  a  Consti- 
tutional exercise  of  this  power  over  the  writ  of  habeas  cor- 
pus by  Congress,  is  to  deprive  a  person,  after  being  legally 
confined,  of  the  privilege  of  a  discharge  before  trial,  by 
giving  bail,  or    on  account   of  insufficiency  of  proof  as  to 
probable  oauffe  or  other  like  grounds.     This  privilege  only 
can  be  suspended,  and  not  the  writ   itself.     The  words  of 
the  Constitution  are   aptly  chosen  to  express  the  purpose 
and  extent  to  which  a  suspension   can  go   in  this   country*. 
With  tlris  view,  the  power  is  a  wise  one.     It  can  work  no 
serious   injury  to  the  citizen  and  it  sufficiently  guards  the 
public  safety.     The  party  against  whom   a  grave   accusa- 
tion is  brought,  supported  by  oath  or  affirmation,  founded 
upon  probable  cause,  must   be  held  for  trial,  and  if  found 
to  be  guilt}  is  to  be  punished   according   to   the   nature  of 
his    offence.     The   monstrous    consequences    of    any  other 
view  of  the  subject  are  apparent.     The  exercise  of  the  pow- 
er by  Congress  may  be  either  general  or  limited  to  special 
eases  as  in  this  instance.     If  it   had   been    general    under 
any  other  vrew  what  would   have   been   the   condition   of 
every  citizen    in  the  land  ?     The  weaker  would   have  been 
completely  in  the  power  of  the  stronger  without  remedy  or 
redress.     Any  one  in  the  community  might  seize  for   any 
motive    or   for   any  purpose,  any  other,  and   confine    him 
most  wrongfully  and  shamefully.     Combinations  of  sever- 
al against  a  few  might  be  formed   for  a  like  purpose,  and 
there  would  be  no  remedy  or  redress  against  this  species  of 
licensed   lawlessness.     The    Courts  wo*uld   be   closed — all 
perscm.s.l  security  and  personal  safety  would  be  swept  away. 
Instead  of  a  land  of'  laws,  the  whole  country  would  be    no 
better  than    a  White-friars    domain — a  perfect   Alsatia. — 
This  would   be  the  inevitable  effect  of  the  exercise  of  the 
power,  by  a   general   suspension,  with   any  other    view  of 
the  subject,  than  this  presented.     The   same  effects  as  to 
outre  >n  personal  rights  must  issue  under  a  limited 

suspension  confined  to  any  other  view.  No  such  huge  and 
enormous  wrongs  can  ever  spring  from  our  Constitution  if 
it  be  rightly  administered.     So  that   the  conclusion  of  the 


u 

whole  matter  is  well  stated  by  the  Governor  in&islate 
Message,  in  the  brief  comprehensive,  but  exact  terms — 
**  Th*  only  suspension  of  the  privilege  of  the  writ  of  habeas 
corpus  known  to  our  Constitution  and  compatible  with  the 
provisions  already  quoted,  goes  to  the  simple  extent  of  pre- 
venting the  release,  under  it,  of  persons  whose  arrests  have 
been  ordered,  under  Constitutional  warrants  from  Judicial 
Authority/' 

On  this  subject  much  light  is  to  be  derived  from  English 
history.  Our  whole  system  of  Constitutional  liberty  rests 
upon  principles  established  by  our  Anglo  Saxon  ancestors. 
But  between  their  system  and  ours,  there  are  several  differ- 
ences that  should  be  noted  and  marked — and  none  more 
striking  and  fundamental  than  the  difference  between  the 
two  upon  this  subject.  With  them  the  right  of  personal 
security  against  illegal  arrests,  was  wrested  from  the  Crown 
by  the  Parliament,  and  established  by  Magna  Charta,  the 
bill  of  rights,  t'he  abolition  of  the  star  chamber,  and  the 
grant  of  the  writ  of  habeas  corpus,  which  is  the  means  of 
redress  against  violations  of  law,  and  other  wrongs  against 
rights  secured  and  acknowledged.  In  the  abolition  of  tha 
court  of  star  chamber,  the  power  was  taken  from  the  King, 
his  heirs  and  successors  forever,  and  every  member  of  his 
privy  council,  to  make  any  arrest  of  any  person  for  any  of- 
fense or  alleged  crime,  except  by  due  process  of  law.  By 
this  act,  the  power  of  the  King  to  issue  warrants  or  orders 
of  arrest,  unsupported  by  oath  or  affirmation,  setting  forth 
probable  cause,  which  before,  had  been  claimed  as  a  royal 
prerogative,  was  taken  away  from  him  and  his  successors 
forever.  The  ruling  monarch,  Charles  I,  gave  his  consent 
to  the  act  and  yielded  the  power.  He  afterwards  broke  his 
pledge.  Civil  .commotions  ensued  from  this  and  other, 
causes.  He  lost  his  head  upon  the  block.  The  subsequent 
history  of  that  strife  between  the  people  and  the  Crown  of 
England,  on  this  and  other  matter,  is  not  now  pertinent  to 
the  object  before  us.  Suffice  it  to  say  that  it  ended  in  the 
settlement  as  it  is  termed  between  the  Parliament  and  their 
new  sovereigns,  William  and  Mary,  in  1688-' S9.  In  this 
settlement,  all  the  ancient  rights  and  liberties  of  the  Eng- 
lish people,  including  the  .right  of  the  writ  of  habeas  cor- 
pus., were  re-affirmed  andsecured.  Such  were  the  liberties 
inherited  is  a  birth  right,  that  our  British  ancestors  brought 
with  them  to  this  continent.  The  principles  established 
in  England,  after  centuries  of  struggle  and  blood,  formed 


15 

the  basis  xijpon  which  the  great  structure  of  American  cdr> 
stitutional  liberty  was  erected.  But  the  striking  difference 
between  their  system  and  ours  to  which  I  have  alluded  and 
which  should  never  be  lost  sight  of,  is  that  with  them,  all 
power  originally  belonged  to  the  Crown.  All  rights  and 
liberties  were  grants  from  the  Crown  to  the  Parliament) 
and  through  them  to  the  people,  while  with  us  all  power 
originally  belonged  to  the  people — and  essentially,  still  re- 
sides with  them.  They  have  appointed  agents  to  perform 
the  functions  of  government  in  the  different  departments, 
executive,  judicial  and  legislative,  under  the  form  of  gov- 
ernment set  forth  in  the  Constitution,  clothed  with  the  ex- 
ercise of  certain  delegated,  specific  and  limited  powers,  la 
England  it  is  cornjjetent  for  the  Parliament  at  any  time  to 
return  the  Crown  all  the  powers  heretofore  extorted  from 
their  kings.  They  can  repeal  any  day  Magna  Charta,  the 
habeas  corpus  act  and  the  whole  bill  of  rights,  and  render 
the  ruling  monarch  as  absolute  as  either  of  the  Tudors  or 
Stuarts  ever  claimed  or  wished  to  be.  The  principles  of 
Magna  Charta  as  to  personal  liberty  and  the  right  of  the 
writ  of  habeas  corpus  to  secure  these  rights  are  put  in  our 
fundamental  laws,  and  cannot  be  violated  by  Congress,  for 
their  powers  are  limited,  and  they  are  themselves  bound  by 
the  Constitution.  That  the  British  people  would  ever  sub- 
mit to  a  surrender  of  their  -rights  by  Parliament,  no  one 
*ean  for  a  moment  believe.  But  Parliament  claims  to  be 
omnipotent  and  could  make  the  surrender,  if  they  chosato 
run  the  risk.  Hence  analogies  between  this  country  and 
that  on  the  suspension  of  the  writ  of  habeas  corpus  and  the 
effect  of  such  suspension,  either  generally  or  specially,,- 
should  be  closely  scanned  ;  even  in  England,  so  great  is  the 
regard  for  liberty,  suspensions  have  been  rare  since  the  set- 
tlement of  16SS-?89.  The  writ  was  suspended  there  in 
1715  and  in  1745— and  in  17&8  it  was  suspended  in  Ireland 
with  the  power  conferred  on  the  lord  lieutenant  to  make  ar- 
rests. Under  the  system  of  government  in  England,  the 
Parliament  could  confer  this  power  upon  the  Crown  or  the 
lord  lieutenant,  or  upon  any  other  person  they  saw  fit. — • 
Not  so  with  our  Congress,  under  our  Constitution.  In  crit- 
icisms upon  the  Governor's  Message,  these  suspensions  have 
been  alluded  to  against  the  positions  of  the  message.  They 
are  not  in  conflict  at  all.  What  the  Governor  state3'is  that 
he  is  not  aware  of  any  "instance  in  which  the  British  King 
has  ordered  the  arrest  of  any  person  in  civil  life  in  any  other" 


16 

manner  than  by  judicial  warrant  issued  by  the  established 
courts  of  the  nation,  or  in  which  he  ha*  suspended  or  at- 
tempted to  suspend  the  privilege  of  the  writ  of  habeas  cor- 
pus, since  the  bill  of  rights  and.  the  act  of  settlement  passed 
in  1689."  He  did  not  say  that  Parliament  had  not  sus- 
pended it,  or  that  our  Congress  could  not  suspend  it,  in  a 
proper  way,  but  that  even  in  England,  where  Parliament 
was  unrestrained,  they  had  not,  since  the  settlement  con- 
ferred upon  the  Crown,  the  power  to  make  arrests,  so  far  as 
he  was  aware. 

'At  this  point  1  will  briefly  refer  to  the  suspension  by  our 
Congress,  alluded  to  the  other  night  by  the  distinguished 
gentleman,  (Hon.  A.  H.  Keenan,)  who  lately  represented 
this  district ;  a  gentleman  whose  remarks  I  listened  to 
with  a  great  deal ,  of  interest,  and  whose  personal  friend- 
ship I  esteem,  so  highly.  He  referred  to  the  Act  of  the 
Confederate  Congress,  passed  October  13,  1862,  and  asked, 
Why  were  there  no  objections  made  to  that?  This  Act 
he  read.  I  have  it  before  me.  It  provides  that  the  "  Pres- 
ident, during  the  present  invasion,  shall  have  the  power  to 
suspend  the  privilege  of  the  writ  of  habeas  corpus  in  any 
city,  town,  or  military  district,  whenever,  in  his  judgment, 
the  public  safety  may  require  it ;  but  such  suspension  shall 
apply  only  to  arrests  made  by  the  authorities  of  the  Con- 
federate government,  or  for  offenses  against  the  same," 
and  in  section  'id,  that  "  the  President  shall  cause  proper 
officers  to  investigate  the  cases  of  all  persons  so  arrested, 
in  order  that  they  may- be  discharged  if  improperly  detain- 
ed, unless  they  can  be  speedily  tried  in  due  course  of  law." 
The  3d  section  limits  the  Act  to  thirty  days  after  the  meet- 
ing of  the  next  Congress. 

The  answer  to  the  inquiry,  why  there  was  no  noise  made 
ahout  this  act,  while  there  is  so  much  made  about  the  one 
lately  passed,  is  two-fold.  In  the  first  place:  this  act  ap- 
plied "only  to  arrests  made  by  the  authorities  of  the  Con- 
federate government" — "for  offenses  against  the  same." — 
The  proper  authorities  for  issuing  warrants  to  arrest  are 
the  courts,  whose  duty  it  is  to  issue  Warrants  for  arrests 
whenever  offenses  or  crimes  are  charged  upon  oath  or  affir- 
mation, stating  probable  cause.  The  section  directing  the 
President  to  cause  "proper  officers  to  investigate  the  cases," 
etc.,  in  its  immediate  connection  with  the  proceeding,  had 
nothing  in  it  calculated  to  awaken,  alarm  or  excite  objec- 
tion, for  by  "proper  officers"  all  naturally  supposed  judi- 


,     '  •  17 

cial  officers  only  could  be  meant — judges  who  would  or  might  act  in 
discharging  under  writs  of  habeas  corpus,  if  that  privilege  had  not 
been  suspended.  In  this  connection  these  words  seemed  naturally 
enough  to  have  a  meaning  far  different  from  what  they  have  when  ta- 
ken from  their  context  and  put  into  this  late  act,  in  which  it  is  clear 
enough  they  are  there  intended  to  apply  to  other  than  judicial  officers. 
There  was  net  then,  <nor  now,  any  objection,  as  far  as  I  ara  aware  of,  to 
the  suspension  of  the  privilege  of  the  writ  of  habeas  corpus;  in  any 
city,  town, 'or  district,  or  generally  throughout  the  country,  if  Con- 
gress really  has  good  reasons  to  believe  the  public  safety  requires  it, 
and  if  the  power  to  suspend  be  constitutionally  exercised.  The  ob- 
jection to  the  late  act  is  that  it  attempts  to  do  what  cannot  constitu- 
tionally be  done. 

But,  in  the  second  place,  in  answer  to  the  inquiry,  why  no  noise 
was  made  about  the  act  of  October,  1862,  I  need  only  say  that  upon 
the  bare  statement  of  the  real  and  substantial  objections  to  that  act, 
it  was  admitted  to  be  unconstitutional  and  void,  because  it  attempted 
to  confer  the  power  to  suspend  upon  the  President,'  when,  in  his  jo;**. 
ment,  the  public  safety  required  it  in  the  localities  embraced  'in  it$ 
terms.  Congress  alone,  under  the  Constitution;  has  the  pow^r  to  sus- 
pend the  privileges  of  the  writ.  They  cannot  confer  this  power  upon 
the  President  or  any  body  else.  This  is  conclusively  admitted  both 
by  Cougress  and  the  President  in  the  lite  act,  for  it  is  set  forth  in  the 
preamble,  "Whereas,  the  power  of  suspending  the  privileges  of  said 
writ  is  vested  solely  in  the  Congress,"  etc.  This  is  an  admission  on 
the  record  that  the  other  act  was  unconstitutional  and  void.  But,  to 
my  mind,  it  is  just  as  clear  that  Congress  cannot  confer  upon  the 
President,  or  any  other  officer  but  a  judicial  one,  the  power  to  issue 
orders  or  warrants  for  the  arrest  of  persons  in  civil  life,  as  it  was  then, 
and  on  the  passage  of  a  similar  act  previously,  that  they  could  not 
confer  the  power  upon  the  President  to  suspend  the  privilege  of  the 
writ  of  habeas  corpus.  The  late  act  is  just  as  void  as  the  previous 
ones,  and  for  a  like  reason.  In  it  Congress  has  attempted  to  do  what 
they  had  not  power  to  do.  -The  first  act' on  the  subject  was  assented 
to  on  the  27th  Feb.,  1862.  That  attempted  to  confer  on  the  Presi- 
dent the  power  not  only  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus  in  certain  cities,  towns,  military  districts,  etc.,  but  to  declare 
martial  law,  etc.  This  soon  after  was  amended.  But  no  one  can  say 
that  during  the  progress  of  these  events  that  I  was  silent  My  senti- 
ments upon  the  subj  ^ct  of  martial  law,  against  the  unconstitutional 
usurpations  of  power,  were-  proclaimed  throughout  the  Confederacy, 
as  they  are  now,  and  will  be  proclaimed  against  the  dangerous  depart- 
ures from  principle  in  this  act.  Martial  law  has  been  abandoned,  and 
I  trust  the  departures  from  principle  in  this  act  will  be  too.  I  speak 
upon  these  as  I  wrote  upon  thjse.  I  have  no  inclination  to  arraign 
the  motives  of  those  who  disagree  with  me.  Great  principles  are  at 
stake,  and  I  feel  impelled  by  a  high  sense  of  duty,  when  my  opinions 
are  sought,-  to  give  them  fully,  clearly,  and  earnestly. 


18 

A  few  thoughts  more  upon  the  subject  in  another  view.     These  re- 
late to  the  object  and  workings,  of  the  act,  if  it  be  sustained  aud  car- 
ried out.     You  have  been    told  that  it  affects  none   but  the  disloyal,. 
none  but  traitors,  or   those  who  are   no   better  than   traitors,  spies, 
bridge  burners  and  the  like,  and  you  have  been  appealed  to  and  asked 
if  such  are  entitled  to  your  sympathies  ?     I  affirm,  and  shall  maintain 
before  the  world,  that  this  act  affects  and  may  wrongfully  oppress  as 
loyal  and  as  good  citizens  and  as  true  to  our  cause,  as  ever  trod  the 
soil  or  breathed  the  air  of  the  South.     This  I  shall  make  so  plain  to 
'      ou  that  no  man  will  ever  venture  to  gainsay  or  deny  it.     This  long 
jr.' .     '  of  offenses  set  forth  in  such    array   in   the  thirteen  specifications,, 
as  I  view,  them,  but  rubbish  and  verbiage,  which  tend  to  cover 
,' .      \de  what  in  its  workings  will  be  found  to  be  the  whole  gist,  of  tire 
.     "Vhether  such  was  the  real  object  and  intention  of  its  framers 
,'  .  -    .     .xjates,  I  know  not.     Against  their  motives  or  patriotism  I 

n     aOVr         ;ng  tQ  gay>      j  take  foQ  a(}t  ag  j  gQ{j  -fc        ^pjjg  wjj0|e  gjst   Qf 

aye  notm  r  ag  appearg  Up0n  jt8  face)  covered  up  in  the  fiftii  specifi- 
Jt  lies,  so  t;,  ,he  middie  0f  t}]e  aetm  it  jg  embraced  in  the 'words— -"and 
cation,^ near  i        0id  military  service." 

attempts  to  n\\  \n  indisputable  attempt  to  deny  every  citizen  in  thU 
Here:  is  a  pla.-  /ight,  if  ordered  into  service,  to  have  the  question 
"broiid  tand  the  1  \e  to  military  duty  under  the  laws  tried  and  adjudi- 
whetlxr  he  is  liabi  ?  Whether  such  was  the  real  object  and  inten- 
cated  by  the  courts         ,d  for  the  bilJ>  j   know   not>  but  g^  would  be 

tiou  of  those  who  vot  «|  sustained  and  enforced.  A  man  over  fifty 
its  undeniable  effect  l  %  dozen  ^^  in  t^e  fieldj  wj10  jja8  done  everv. 
years  of  age,  with  halt  i  ,  cauge  £mm  tlie-  beginning  of  the  war,  may, 
thin?  in  his  power  for  tlu  ,  gecretary  of  War,  be  arrested  by  the  sub- 
under  instructions  from  tb.  ,  to  camp,  upon  the  assumed  ground  that, 
enrolling  officer  and  ordered  ^  Un(]cr  fchlB  kw>  Jf  jfc  be  a  kw  he 
in  point  of  tact,  he  is  under  L  >dregg>  A  case  to  iiiustrate  by  occurred1 
would  be  without  remedy  or  r.  %[l  0rderg  were  igsued  tQ  examine 
within  my  own  knowledge  last  i  the  'a2eg  of  persons^  and  instructions 
the  census  returns  of  18bU,  as  to  ^  governed  as  to  the  age  of  parties 
given  to  sub-enrolling  omcers  to  ded  fco  .  th&  cengug  retunjs>  the 
by  those  returns.  In  the  case  aim  rf  ^^  Rq  teBted  that  he 
patty,  was  not  forty-five  at  the  time  <  ,lfL_that  the  return  mg  en.Qn_ 
bad  not  made  the  census  returns  hims.  he  ^  ^  tQ  oye  hy  ey._ 
eous,  %  was  not  given  unaer  oat h-toat  ^  forfevr.five  aua  not  ji:lble 
dence  entirely  satisfactory  that  ^  was  o  .  geryice_  Hig  ^.^  of 
under  the  law,,  as  it  then  stood,  to  mihtary       ^  {JQf  fJ  ^ 

the  writ  of  habe%  corpus-his  righ A ,ic >  ha%e    ^J    ^  ^  ^  ^ 
law  settled  by  the  courts   was  not  then  susp.  ^         ^ 

charged.     But  what  would  he .  hu ,     taation     a  ^ 

liho  circumstances,  i   this  act  be   held  to  ^      d  law_abiding  ma'n 
act  afficts  none  but  the  disloyal    «dM»o^  ^ 

can  justly  complain  of  it !     As  I  view  it,  its  main 
doorl  of  justice^  against  thousands  of  „  ^™f£$  ^ 
appeal  to  the  courts  for  thoir  legal  rights,      xaKo 


IS 

vrho  availed  themselves  of  the  law  to  put  in  substitutes— seme  for  one 
motive,  and  some  for  another— «onie,  doubtless,  for  not  only  <*ood 
but  patriotic  motive*,  believing  thaj,  they  could  render  the  country 
more  service  at  home  than  in  the  field.  I  know  one  who  has  put  in 
two,  one  when  the  call  was  for  those  up  to  thirty-five  years  of  age 
the  other  when  the  call  was  to  forty-five.  One  of  these  substitutes 
was  an  alien,  whose  services  could  not  have  been  commanded  by  the 
government,  and  who  is  now  at  Charleston,  and  has  been  during  the 
whoie  siege  of  that  place.  This  man  who  pat  in  these  two  substi- 
tutes, remained  at  home  most  usefully  employed  in  producing  provis- 
ions for  the  army.  All  his  surplus  went  that  way,  while  he  had  two 
men  abler  bodied  than  he  was,  fighting  for  him  in  the  field.  Who 
would  say  that  such  a  man  is  disloyal  to  the  cause,  if,  believing  in  his 
heart  tuat  he  was  not  liable  under  his  contract,  as  he  supposed  with 
iiis  government,  he  should  appeal  to  the  courts  to  decide  the  question 
whether  he  is  liable  under  the  law  or  not  ?  As  to  the  law  allowing 
substitutes  m  the  first  instance,  and  then  the  law  abrogating  or  annul- 
Vv?  lfcV  °alllDg  the  PridciPals^  the  field,  I  have  nothing  to  say 
What  I  maintain  is,  that  it  is  the  great  constitutional  right  of  any  and 
every  party  affected  by  the  last  of  these  acts  on  the  subject,  to  have 
the  question  of  his  legal  liability  judicially  determined  if  he  chooses 
£nd  then  as  a  good  law-abiding  citizeu  act  accordingly. 

Take  another   illustration   of  the   practical  workings  of  the  act -a. 
Congress  by  law  exempted  from  conscription  such  State  officers  as  the 
legislatures  of  the  respective  States   might  designate  as  proper  to  be 
retained  tor  State  purposes.     At  your  last  session  you,  by  resolution, 
designated  all  the  civil  ami  militia  officers  of  the  State.     A  late  order 
has  been  issued  by   Gen.  Cooper,    as  is  seen  in  the  papers,  doubtless 
under  order  from  the  Secretary  of  War,  to  enroll  and  send  to  camp  a 
large  number  of  these  officers— amongst  others,  justices  of  the  peace 
tax  receivers  and  collectors.     This  order  is  clearly  against  the  Jaw  of 
Congress  and  your  solemn  resolution.     It  is  in  direct  antagonism  tc 
the  decision  of  the  Supreme  Court  of  this  State,  in  the  very  case  in 
wined  they  sustained  the  power  of  Congress  to  raise  troops  by  con- 
scription, but  in  which  they  held  that  the  power  was  limited,  and  that 
the  civil  officers  of  the  State  could  not  be  constitutionally  conscripted 
I  use  the  word  conscripted  purposely— I  know  there  is  no  such  word 
in  the  English  language— neither  is  there  any  sueh  word  as  conscrib/% 
the  one  usually  in  vogue  now  a  days.     A  new  word  had  to  be  coined 
tor  a  process  or  mode  o*  raising  armies,  unheard  of  and  undreamed  of 
by  our  ancestors,   and  I  choose  to  coin   one  which  best  expresses  my 
idea  ot  it.     But  under  this  order  of  General  Cooper,  is  it  not  the  right 
of  these  officers,  is  it  not  the  right  of  the  State,  to  have  the  question 
ot  their  liability  to  conscription   determined   hy  the  judiciary  1     Is  it 
not  the  duty  of  Congress  to  compel  the  Secretary  of  War  and  General 
Cooper  to  aoide  by  that  decision   and  to  obey  their  own  laws,  instead 
ot  attempting  to  close  the  doors  ot  the  courts  against  the  adjudication 
ot  all  such  matters  that  come  within  the  sphere  of  their  constitutional 
duties.  * 


20 

Again,  Congress,  by  the  last  section  of  the  first  conscript  act,  de~ 
clared  that  all  .who  were  or  should  be  subject  to  it  might,  previous  to 
enrollment,  volunteer  in  any  company  then  in  the  service.  Not- 
withstanding this  express  law  of  Congress,  securing  the  right  of  any 
person  liable  to  conscription  to  volunteer  in  any  company  then  in  the 
service  previous  to  enrollment,  General  Cooper  has  issued  an  order 
by  direction  of  the  Secretary  of  War,  doubtless,  denying  this  right 
to  volunteer  in  any  company  then  in  existence,  unless  "the  number  in 
such  company  is  less  than  sixty-four  men.  Unier  this  illegal  order 
a  number  of  as  brave,  gallant,  chivalrous,  noble  spirited  youths  as 
ever  went  forth  to  battle  for  their  country  and  peril  their  lives  tor  con- 
stitutional liberty,  will  be  deprived  of  their  birth  right — the  right  to 
have  questions  of  law,  affecting  their  liberty,  determined  by  the  courts 
• — if  this  act,  closing  the  court  against  them,  shall  be  held  to  be  valid. 
Tell  me  not  the  act  affects  none  but  traitors,  spies,  and  the  disloyal ! 
I  neard  not  long  since  in  Albany,  a  father  carried  his  son  to  the  dis- 
trict enrolling  officer;  he  had  jus"t  arrived  at  the  age  when  he  was 
liable  to  conscription  ;  hie  never  wished  him  to  go  to  the  war  as  a  con- 
script. His  older  brothers  had  gone  before  him,  they  went  out  early 
in  the  war  as  volunteers,  and  they  formed  part  of  that  living  wall  of 
freemen  which  still  stands  between  us  and  a  ruthless  foe.  He  told 
the  enrolling  officer,  in  substance,  that  he  had  brought  this  boy,  the 
Benjamin  of  his  heart,  as  another  offering  on  the  altar  of  his  country. 
Ho  was  going  as  a  rolupteer  under  the  clause  of  the  act  alluaed  to  ; 
he  had  selected  the  company  to  which  his  brothers  belonged-  He 
was  told  this  could  not  be  allowed.  At  this  the  father  was  greatly 
surprised  and  mortified,  as  may  be  readily  understood ;  he  insisted 
upon  the  rights  of  his  son.  Great  as  his  surprise  was  at*  first,  how- 
ever, greater  was  it  still  to  be.  The  son  was  ordered  to  jail,  to  be 
sent  to  the  camp  of  instruction,  to  be  assigned  to  any  company  his  of- 
ficers might  choose.  The  high  spirited  youth,  scorning  conscription, 
offering  himself  as  a  volunteer,  asking  nothing  but  his  legal  rights, 
instead  of  being  sent  on  with  cheers  by  the  crowd,  and  a  father's  part- 
ing blessing,,  was  sent  to  jail  as  a  felon  ! 

Can  any  one  say  that  this-  was  not  a  most  shanjeful  outrage? 
.  It  is,  however,  but  one  of  a  thousand  cases  like  it  that  may  occur, 
and  probably  will  occur,  should  this  law  be  held  to  be  constitutional; 
and  if  the  doors  of  the  courts  are  to  be  closed  against  all  who  may  be 
ordered  to  the  military  service,  without  regard  to  law,  I  have  here 
two  letters  which  will  further  illustrate  how  this  act  will  work.  They 
are  both  addressed  to  the  Governor.  One  is  from  a  Mr.  Samuel  H. 
Parker,  written  in  Charleston  jail.  [Here  Mr.  S.  read  the  letter, 
stating  that  the  writer  was  a  native  Georgian.  That  he  lived  in  Whit- 
field county.  That  he  was  forty-seven  years  of  age,  as  the  rocord 
would  show,  then  in.  Whitfield  county.  That  he  was  at  his  home  with 
his  wife,  (who  was  then  sick,)  with  ten  small  chihlren,  on  the  27th 
of  February,  of  this  year,  when  a  party  on  horses  came  and  arrestqd 
him,  and  carried  him  to  Dalton.     And  from  Dalton  he  was  carried  to 


21 

Atlanta.  He  protested  that  he  was  over  age,  and  not  liable  to  mili- 
tary duty — that  he  was  forty-seven  years  old.  He  was  told  that  that 
was  the  right  age  to  make  a  soldier  in  South  Carolina,  and  he  was 
sent  to  Charleston,  where  he  was  put  in  jail.  He  appealed  to  the 
Governor  of  his  native  State,  and  the  State  of  his  residence,  to  hme 
justice  done  him  ]  Of  this  Mr.  Parker,  said  Mr.  S.,  I  know  noth- 
ing except  what  is  stated  in  this  letter.  It  may  be  false,  and  yet  it 
may  be  true.  If  true,  justice  ought  to  be  done  to  a  man  so  greatly 
outraged  and  wrooged.  But  whother  true  or  false,  the  courts  ought 
never  to  be  closed  against  an  inquiry  iuto  the  facts,  and  never  will 
be,  so  long  as  personal  security  has  any  protection  in  this  country. 

The  other  letter  is  from  the  Hon.  John  Oats,  a  member  of  this- 
House,  from  the  county  of  Murray.  It  is  dated  the  11th  of  this 
month,  the  day  after  the  meeiiug  of  this  session.  [Here  Mr.  8.  read 
Mr.  Oa  s'  letter,  stating  that  he  was  detained  at  Atlanta  under  very 
painful  circumstances.  His  oldest  son,  who  had  been  in  the  army, 
was  subject  to  epilepsy,  and  had  been  discharged  in  consequence. — 
That  afterwards  he  had  been  carried  before  a  board  of  physicians,  who 
pronounced  his  case  incurable,  a.nd  he  was  giveu  a  certificate  of  final 
discharge,  on  the  grounds  of  permanent  disability.  That  on  the 
morning  Mr.  Oats  left  home  for  Milledgeville,  the  provost  guard  at 
1  a! ton  went  to  his  bouse,  at  Spring  Place,  and  carried  his  son  off  to* 
Dalton.  They  carried  him  from  there  to  CartersvilL  to  Capt.  Siarr, 
the  enrolling  officer  for  the  10th  Congressional  District,  and  he,  know- 
ing all  about. his  case,  sent  him  back  to  Dalton,  stating  in  writing  on 
the  order  that  he  was  sent  there  under,  that  according  to  law,  and  his 
orders  trom  the  War  Department,  he  was  not  liable  to  conscription. 
Thaf  on  his  return  to  Dalton  they  put  him  in  irons  and  assigned  him 
to  Charleston,  to  go  into  the  fortifications,  and  that  he  expected  him 
in  Atlanta  that  evening.  He  was  walling  with  the  best  counsel  he 
could  get/ to  see  if  there  was  any  virtue  in  the  writ  of  habeas  corpus. 
He  asked  that  the  Governor  would  get  som3  member  to  procure  for 
him  leave  of  absence  from  the  House.] 

Well,  for  Mr.  Oats,  said  Mr.  Stephens,  and  his  afflicted  son,  there 
is  some  virtue  yet  in  the  writ  of  nabeas  corpus. 

But  what  virtue  would  be  in  it,  if  it  is  denied  under  this  act,  to  all 
who  attempt  to  avoid  military  service  ?  Nothing  could  induce  ine  to 
read  such  letters  on  such  an  occasion,  but  a  sense  of  duty,  to  show 
you  what  will  be  the  stnte  of  things  all  over  the  country,,  under  the 
operations  of  such  a  law,  when  orders  are  issued  for  its  enforcement 
and  to  put  you  on  your  guard  against  the  flippant  phrase  that  the  an 
will  affect  none  but  traitors,  spies  and  disl  »yal  people.  Had  it  been 
in  operation,,  and  the  courts  regarded  it.  Mr.  Oats'  son,  who  had 
served  his  country  faithfully,  as  long  as  he  was  able,  might  now  have 
been  beyond  remedy,  beyond  redress  and  beyond  hope.  Will  you 
say,  can  you  say,  that  the  courts  ought  to  be,  or  can  bi  closed  against 
such  monstrous  wrongs  ?  Will  you  not  rather  put  upon  the  attempt 
to  do  it  the  seal  of  your  unqualified  condemnation  ?     Tell  me  not,  to 


22 

put  confidence  in  the  President  That  he  will  never  abuse  the  power 
attempted  to  be  lodged  in  his  hands.  The  abuses  may  not  be  by  the 
President.  He  will  not  execute  the  military  orders  that  will  be  giv- 
en. This  will  necessarily  devolve  upon  subordinates,  scattered  all 
over  the  country,  from  the  Potomac  to  the  Rio  Grande.  He  would 
have  to  possess  two  superhuman  attributes;  to  prevent  abuses-^omni- 
science,  and  omnipresence  I  ' 

These  things  our  forefathers  knew,  and  hence  they  threw  around 
the  personal  security  of  the  free  citizens  of  this  country  a  firmer,  safer, 
surer  protection  than  confidence  in  any  man,  against  abuses  of  power, 
even  when  exercised  under  his  own  eye  and  by  himself  That  pro- 
tection is  the  shield  of  the  Constitution.  See  to  it  that  you  do  not  in 
an  evil  hour  tear  this  shield  otf  and  cast  it  away,  or  permit  others  to 
do  it,  lest  in  a  day  you  wH  not  of  you  sorely  repent  it. 

Enough  has  been  said,  without  dwelling  longer  upon  this  point,  to 
fihoWj  without  the  possibility  of  a  d<£ibt,  that  the  act  does  affect  others, 
and  large  classes  of  others  than'  spies,-  traitors,  bridge  burners  and 
disloyal  persons— that  the  very  gist  of  the  act,  whatever  may  have 
been  the  intent  or  the  motive,  will  operate  most  wrongfully  and  op- 
pressive on  as  loyal,  as  patriotic,  and  as  true,  men  as  ever  inherited  a 
freeman's  birthright  under  a  Southern  sky.  You  have  also  seen  that ' 
there  is  and  can  be  no  necessity  for  the.  passage  of  such  an  act,  even 
if  it  were  constitutional,  in  the  case  of  spies,  traitors  or  conspirators. 
For,  if  there  be  a  traitor  in  the  Confederacy — if  such  a  monster  exists 
— if  any  well  grounded  suspicion  is  entertained  that  any  such  exists, 
why  not  have  him  legally  arrested  by  judicial  warrant  upon  oath  or 
affirmation,  setting  forth  probable  cause,  and  theu  he  can  be  held  un- 
der a  constitutional  suspension  of  the  privileges  of  the  writ — he  can 
be  tried,  and,  it  found  guilty,  punished.  What  more  can  the  public 
safety  by, possibility  require?  Why  dispense  with  the  oath?  Why 
dispense  with  judicial  warrants?  Why  put  it  id  the  power  of  any 
man  on  earth  to  order  the  arrest  of  another  on  a  simple  charge,  to 
which  nobody  will  swear?  Who  is  sife  under  such  a  law?  Who 
knows,  when  he  goes'  fjrth,  when  or  whether  he  shall  ever  return  ? 
The  President,  according  to  this  act,  is  to  have  power  to  arrest  and 
imprison  whoever  he  pleases,  upon  a  bare  charge,  made,  perhaps,  by 
an  enemy  of  disloyalty.  The  party  making  the  charge  not  being  re- 
quired to  swear  to  it !  Who,  I  repeat,  is  safe  or  would  be  under  such  a 
law?  What  were  the  objects  of 'the  act,  in  these  clauses,  as  to  trea- 
son, disloyalty,  and  the  others,  I  do  not  know.  To  me  it  seems  to  be 
unreasonable  to  suppose  that  it  was  to  reach  real  traitors  and  persons 
guilty  of  the  offenses  stated.  For  that  object  could  have  been  easily 
accomplished  without  any  such  extraordinary  power.  I  was  not  at 
Richmond  wh^n  the  act  passed.  I  heard  none  of  the  discussions, and 
knew  none  of  tho  reasons  assigned  by  the  President  in  asking  it;  or 
the  members  or  Senators  who  voted  for  it.  I  was  at  home,  prostrate 
with  disease,  from  which  I  have  not  yet  recovered,  and  by  reason  of 
which  I  address  you  with  so  much  feebleness  on  this  occasion.     Bufe 


23 

I  have  heard  that  one  object  was  to  control  certain  elections  and  ex- 
pected assemblages  in  North  Carolina,  to  put  a  muzzle  upon  certain 
presses  and  a  bit  in  the  mouth  of  certain  speakers  in  that  State.  If 
:his  be  so,  I  regard  it  the  more  dangerous  to  public  liberty  1  know 
nothing  of  the  politics  of  North  Carolina — nothing  0/ the  positing  0f 
her  leading  public  men.  It  there  be  traitors  there,  let  them  be  con- 
stitutionally arrested,  tried  and  punished.  No  fears  need  be  indulg- 
ed of  bare  error  there,  or  anywhere  else,  if  reason  is  left  free  to  com- 
bat it.  The  idea  is  incredible,  that  a  majority  of  the  people  of  that 
gallant  and  noble  old  State,  which  was  foremost  in  the  war  of  the  rev- 
olution in  her  memorable  Mecklenburg  declaration  of  independence 
err,  if  let  alone,  ever  be  induced  to  prove  themselves  so  recreant  to 
the  principles  of  their  fathers  as  to  abandon  our  cause  and  espouse  the 
despotism  of  thj  North.  Her  people,  ahead  of  all  the  Colonels,  first 
flaunted  in  the  breeze  the  flag  of  Independence  and  State  Sovereign- 
ty,. She  cannot  be  the  first  to  abandon  it — no,  never  !  I  cafnot  be- 
lieve it!  If  her  peopje  were  really  so  inclined,  however,  we  could 
not  prevent  it  by  force — we  could  not,  under  the  Constitution,  it'  we 
would,  and  we  ought  not  if  we  could.  Ours  is  a  government  founded 
upon  the  consent  of  sovereign  States,  and  will  be  itself  destroyed  by 
the  very  act  whenever  it  attempts  to  maintain  or  perpetuate  its  exis- 
tence by  force  over  its  respective  members.  The  surest  way  to  check 
any  inclination  in  North  Carolina  to  quit  our  sisterhood,  if  any  such 
really  exist  oven  to  the  most  limited  extent  among  her  people,  is  to 
show  them  that  the  struggle  is  continued,  as  it  was  begun,  for  the 
maintenance  of  constitutional  liberty.  If,  with  this  great  truth  ever 
before  them,  a  majority  of  her  people  should  prefer  despotism  to  lib- 
erty, I  would  say  to  her,  as  to  "a  wayward  sister,  depart  in  peace." 
I  want  to  see  no  Maryland  this  side  of  the  Potomac. 

Another  serious  objection  to  the  measure,  showing:  its  impolicy,  is 
th^  effect  it  will  have  upon  our  cause  abroad.  I  have  never  louked 
to  foreign  intervention,  or  early  recognition,  and  do  not  now.  Euro- 
pean governments  have  no  sympathy  with  either  side  in  this  strug- 
gle. They  are  rejoiced  to  see  professed  republicans  cutting  each 
other's  throats,  and  the  failure,  as  they  think,  of  the  great  experi- 
ment of  self-government  on  this  continent.  They  saw  that  the  North 
went  into  despotism  immediately  on  the  separation  of  the  Ssuth,  and 
their  fondest  hopes  and  expectations  are  that  the  sa  ne  destiny  awaits 
us.  This  has  usually  been  the  fate  of  republiqs.  This  is  the  senti- 
ment of  all  the  governments  in  Europe.  But  we  have  friends  dure, 
as  you  heard  hst  night,  in  the  eloquent  remarks  of  the  gentleman 
[Hon.  L.  Q.  C.  Lamar]  who  addressed  you  on  our  foreign  relations, 
and  who  has  lately  returned  from  those  couu tries.  Those  friends  are 
anxiously  and  hopefully  watching  the  issue  of  the  present  convict.  In 
speeches,  papers  and  reviews  they  are  defending  our  cause  No  ar- 
gument used  by  them  heretofore  has  been  more  effectual  than  the  con- 
trast drawn  between  the  Federals  and  the  Confederates  upon  the  sub- 
ject of  the  writ  of  habeas  corpus.    Here,  notwithstanding  our  dangers 


24 

and  perils,  the  military  has  always  been  kept  subordinate  to  the  civil 
authorities.     Here  all  the  landmarks  of  English  liberty  have  been 
preserved  and  maintained,  while  at  the  North  not  a  vestige  of  them 
if  left.     There,  instead  of  courts  of  justice  with  open  doors',  the  coun- 
try is  dotted  all  over  with  prisons  and  bastiles.     No  better  argument 
in  behalf  of  a  people  struggling  for  constitutional  liberty  couJd  have 
been  presented  to  arouse  sympathy  in  our  favor.     It  showed  that  we 
were  passing  through  a  fiery  furnace  for  a  great  cause,  and  passing 
through  unscathed.     It  showed  that,   whatever  may  be  the  state  of 
things  at  the  North,  at  the  South,  at  least,  the  great  light  of  the  prin- 
ciples of  self-government,   civil  and  religious  liberty,  established  on 
this  continent  by  our  ancestors,  which  was  looked  to  with  encourage- 
ment and  hope  by  the  down-trodden  of  all  nations,  was  not  yet  extin- 
guished, but  was  still  burning  brightly  in  the  hands  of  their  Southern 
sons,  even  burning  the  more  brightly  from  the  intensity  of  the  conflict 
in  which  we  are  engaged.     To  us,  in  deed  and  in  truth,  is  committed 
the  hopes  of  the  world  as  to  the  capacity  and  ability  of  man  for  self- 
government.     Let  us  see  to  it  that  these  hopes  and  expectations  do 
not  fail.     Let  us  prove  ourselves  equal  to  the  high  mission  before  us. 
One  other  only  that  relates  tfthe  particularly  dangerous  tendency 
of  this  Act  in  the  present   state  of  the  country,  and  the  policy  indi- 
cated by  Congress.     Conscription  has  been  extended  to  embrace  all 
between  seventeen  and  Sfty  years  of  age.     It  cannot  be  possible  that 
the  intention  and  object  of  that  measure  was  really  to  call  and  keep 
in  the  field  all   between  those   ages.     The   folly  and    ruinous   conse- 
quence of  such  a  policy  is  too  apparent.     Details  are  to  be  made,  and 
must  be  made,  to  a  large  extent.  *'The  effect  and  object  of  this  meas- 
ure, therefore,  was  nor  to  raise  armies  or  procure  soldiers,  but  to  put 
all  the  population  of  the  country  between  those    ages  under  military 
law?     Whatever  the  object  was,  the  effect  is  to  put  much   the  larger 
portion  of  the  labor  of  the  country,  both  white  and  slave,  under  the 
complete  control  of  the  President.     Under  this  3ystern  almost  all  the 
useful  and  necessary  occupations  of  life  will  be  completely  under  the 
control  of  one  man.     No  one  between  the  ages  of  seventeen  and  fifty 
can  tan  your  leather,  make  your  shoes,  grind   your  grain,  shoe  your 
liors. ,  Jay  your  plough,  make  your  wagon,  repair  your  'harness,  su- 
perintend your  farm,  procure   your  salt,  or  perform  any  other  of  the 
necessary  vocations  of  life,  (except  teachers,  preachers  and  physicians, 
aiid  a  very  few  others)  without  permission  from  the  President.     This 
is  certainly  an  extraordinary  and  a  dangerous  power.     In  this  con- 
nection take  in  view  this  habeas  corpus   suspension   act,  by  which  it 
has  been  shown  i,he  attempt  is  made  to  confer  upon  him  the  power  to 
order  the  arrest  and  imprisonment  of  any  man,  woman  or  child  in  the 
Confederacy  on  the  bare  charge,  unsupported  by  oath,  or  any  of  the  ■ 
acts  for  which  arrests  are    allowed   to    be   made.     Could    the  whole 
country  be  more  completely  under  the  power  and  control  of  one  man, 
except  as  to  life  and  limb?     Could    dictatorial   power  le   more  com- 
plete?    In  this   connection   consider,  also,  the   strong  appeals   that 


•      25 

have  been  made  for  some  time  past,  by  leading  journals,  openly  for  a 
dictator.  Comiug  events  often  cast  their  shadows  before.  Could  art 
or  ingenuity  have  devised  a  shorter  or  a  surer  cut  to  that  end,  for  all 
practical  purposes,  than  the  wnole  policy  adopted  by  the  last  Congress, 
and  now  before  you  for  consideration  ?  As  to  the  objects,  or  motives, 
or  patriotism  of  those  who  adopted  that  policy,  that  is  not  the  ques- 
tion. The  presentation  of  the  case  as  it  stands  is  what  your  atten- 
tion is  called  to.  Nor  is  the  probability  of  the  abuse  of  tie  power 
the  question  Sv.me,  doubtless,  think  it  is  for  the  best  interests  of 
the  country  to  have  a  dictator  ?  Such  are  not  unfrequently  to  be  met 
with  whose  intelligence,  probity  and  general  good  character  in  pri- 
vate life  are  not  to  be  questioned,  however  much  their  wisdom,  judg- 
ment and  principles  may  be  deplored.  In  such  times,  when  consid- 
ering the  tacts  as  they  exist,  and  looking  at  the  policy  indicated  in 
all  its  bearings,  the  most  ill-timed,  delusive  and  dangerous  words  that 
can  be  uttered  are,  can  you  not  trust  the  President?  Have  you  not 
confidence  in  him  that  he  will  not  abuse  the  powers  thus  cpnfided  in 
him  ?  To  all  such  questions  my  answer  is,  without  any  reflection  or 
imputation  against  our  present  Chief  Magistrate,  that  the  measure  of 
my  confidence  in  him,  and  all  other  public  officers,  is  the  Constitu- 
tion. To  the  question  of  whether  I  would  not  or  cannot  trust  him 
Tffith  these  high  powers  not  conferred  by  the  constitution 
my  answer  is  the  same  that  I  gave  to  one  who  submitted  a  plan  for  a 
dictatorship  to  me  some  months  ago  :  "I  am  utterly  opposed  to  every- 
thing looking  to  or  tending  towards  a  dictatorship  in  this  country- 
Language  would  fail  to  give  utterance  to  my  inexpressible  repugnance 
at  the  Dare  suggestion  of  such  a  lamentable  catastrophe.  There  is 
no  man  living,  and  not  one  of  the  illustrious  dead,  whom,  if  now  liv- 
iving,  I  would  so  trust  " 

in  any  and  every  view,  therefore,  I  look  upon  this  habeas  corpus 
suspension  act  as  unwise,  impolitic,  unconstitutional  aid  dangerous 
to  public  liberty. 

But  you  have  been  asked  what  can  you  do?  Do?  You  can  do 
much,  'if  you  believe  the  act  to  be  unconstitutional,  you  can  and 
ought  so  to  declare  your  judgment  to  be. 

What  can  you  do?  What  did  Virginia  and  Kentucky  do  in 
1797-98,  under  similar  circumstances f  What  did  Jefferson  do, 
and  what  did  Madison  do,  and  what  did  the  legislators  of  those 
States*  then  do  ?    . 

Though  a  war  was  then  threatening  w'th  France — though  armies 
were  being  raised — though  Washington  was  called  from  his  retire- 
ment to  take  command  as  lieutenant-general — though  it  was  said 
then  as  now,  that  all  discussions  of  even  obnoxious  measures  of  Con- 
gress would  be  hurtful  to  the  public  cause,  they  did  not  hesitate,  by 
solemn  resolves 'by  the  Legislatures,  to  declare  the  alien  and  sedition 
laws  unconstitutional  and  utterly  void.  •  Those  acts  of  Congress,  in 
my  judgment,  were  not  more  clearly  unconstitutional,  or  more  dan- 
gerous to  liberty,  than  this  act  now  under  review.  What  can  you 
do  ?     You  can  invoke  its  repeal,  and  ask  the  government  officials  and 


26/ 

the  people  in  the  meantime,  to  liet  the  question  of  constitutionality  lie- 
submitted  to  the  courts,  and  both  sides  abide  by  the  decision 

Some  seem  to  be  of  the  opinion,  that  those  who  oppose  this  act  are 
for  a  counter-revolution.  No  such  thing.  I  am  for, no  counter-rev- 
olution. The  object  is  to  keep  the  present  one,  great  in  its  aims  and 
grand  in  its  purposes,  upon  the  right  tract — the  one  on  which'  it  was 
started,  and  that  on  which  alone  itcaa  attain  noble  objects  and  majes- 
tic achievements.  The  surest  way  to  prevent  a  counter-revolution, 
is  for  the  State  to  speak  out  and  declare  her  opinions  upon  this  sub- 
ject For  as  certain  as  day  succeeds  night,  the  people  of  this  Con- 
federacy will  never  live  long  in  peace  and  quiet  under  any  govern- 
ment .with  the  principles  of  this  act  settled  as  its  established  policy, 
and  held  to  be  in  conformity  with  the  provisions  of  its  fundamental 
law.  The  action  of  the  Virginia  Legislature  in  1779,  «aved  the  old 
government  beyond  question,  from  a  counter  and  bloody  revolution  ; 
kept  it  on  the  right  track  for  sixty  years  afterwards,  in  its  unparallel- 
ed career  of  growth,  prosperity,  development,  progress,  happiness, 
and  renown.  All  our  present  troubles,  North  and  South,  sprang 
from  violations  of  those  great  constitutional  principles  therm  set 
forth. 

Let  no  one,  therefore,  be  deterred  from  performing  his  duty  on 
this  occasion  by  the  cry  of  counter-revolution,  nor  by  the  cry  that  it 
is  the  duty  of  all,  in  this  hour  of  peril,  to  support  the  government. — 
Our  government  is  composed  of  executive,  legislative  and:  judicial 
department,  under  the  Constitution.  He  most  truly  and  faithfully 
supports  the  government  who  supports  and  defends  the  Constitution. 
Be  not  misled  by  this  cry,  or  that  you  must  not  say  anything  against 
the  administration,  or  you  will  injure  the  cause.  This  is  the  argu- 
ment of  the  pr-acher,  who  doubted  that  his  derelictions  should  not  be 
exposed,  because  if  they,  were,  it  would  injure  his  . use  fulness  v  as  a. 
minister.  Derelict  ministers  are  not  the  cause  Listen  to  no  such 
cry.  And  let  no  one  be  influenced  by  that  other  cry,  of  the  bad  ef- 
fect of  such  discussions  and  such  action  will  have  upon  our  gallant 
citizen  soldiers  in  the  field.  I  know  something  of  the  feeling -of  these 
men.  I  have  witnessed  their  hardships,  their  privations  ana  their 
discomforts  in  camp.  I  have  witnessed  and  ministered  to  their  want* 
and  sufferings  from  disease  and  wounds  in  hospitals. 

I  know  something  of  the 'sentiments  that  actuated  the  great  major- 
ity of  them,  when  they  quit  home,  with  all  its  endearments,  and  went 
out  to  this  war — not  as  mercenaries  or  human  machines;  but  as  intel- 
ligent, high-minded,  noble-spirited  gentlemen,  who  ^ere  proud  of 
their  birthright  as  freemen,  and  "  who,  knowing  their  rights,"  dared 
maintain  them,  at  any  and  every  cost  and  sacrifice.  The  old  Barons 
who  extorted  magna  charta  from  their  oppressor  and  wrong-doer  by  a 
resort  to  arnfs,  did  not  present  a  grander  spectacle  for  the  admiration 
of  the  world  when  they  went  forth  to  their  work,  thoroughly  imbued 
with  a  sense  of  the  right  for  the  right's  sake,  than  this  gallant  ban<$ 
of  patriots   did  when  they  went  forth  in  this  war,  inspired  with  no 


27 

motive  but  a  thorough  devotion  to  and  an  ardent  attachment  for  con- 
stitutional liberty  To  defend  this  and  maintain  it  inviolate  for  them- 
selves and  tnose  who  should  come  after  them,  was  their  sole  object. 
Their  ancient  rghts,  usages,  institutions  and  liberties  were  threaten- 
ed by  an  insolent  foe,  who  had  trampled  the  Constitution  of  our  com- 
mon ancestors  under  foot.  They  and  we  all  had  quit  the  Union  when 
the  rights  of  all  of  us  were  no  longer  respected  under  it,  but  we  had 
rescued  the  Constitution— the  ark  of  the  covenant— and  'his  is  what 
they  went  to  defend.  These  were  the  sentiments  with  w'hi6h  your 
armies  were  raised  as  if  by  magic.  These  are  the  sentiments  with 
which  re-enlistments  for  the  war  have  been  made.  These  are  the 
sentiments  with  which  your  ranks  would  have  Deen  filled  to  the  last 
maD  whose  services  can  be  relied  upon  in  action  if  conscription  had 
never  been  resorted  to. 

You  cannot,  therefore,  send  these  gallant  defenders  of  constitution- 
al liberty  a  more  cheering  message  than  that,  while  they  are  buttling 
for  their  rights  and  the  common  rights  of  all  in  the;  field,  you  are 
keeping  sacred  watch  and  guard  .over  the  same  in  the  nublic  councils. 
Ihey  will  enter  the  fight  with  renewed  vigor  from  the'  assurance  that 
their  toil,  and  sacrifice,  and  blood  will  not  be  in  vain,  but  that  when 
'the  strife  is  over  and  independence  is  acknowledged,  it  will  not  be 
a  bare  name,  a  shadow  and  a  mockery,  but  that  with  it  they  and  their 
children  atter  them  shall  enjoy  that  liberty  for  which  they  now  peril 
all*  iSext  to  this,  the  mo  t  encouraging  message  you  could  send 
them  is,  that  while  all  feel  that  the  brunt  of  the  fight  must  be  borne 
by  them,  and  the  only  sure  hope  of  success  is  in  the  power  of  their 
arms  yet  every^  possible  and  honorable  effort  will  be  made  by  the 
,civil  departments  of  the  government  to  terminate  the  struggle  by  ne- 
gotiation and  adjustment  upon  the  principles  for  which  they  entered 
the  contest.  ' 

'  Gentlemen,  I  have  addressed  you  longer  thnu  I  expected  to  be  able 
to  do.  My  strength  will  not  allow  me  "to  say  more.  I  do  not  know 
that  I  shall  ever  address  you  again,  or  see  you. again.  Great  events 
nave  passed  since,  standing  in  this  place  three  years  ago,  I  addressed 
your  predecessors,  on  a  similar  request,  upon  the  questions  then  im- 
mediately pending  our  present  Troubles.  Many  who  were  then  with 
us  have  since  passed  away.  Some  in  the  ordinary  course  of  life, 
while  many  of  them  bave.  fallen  upon  the  battle-field,  offering  up  their 
lives  m  the  great  cause  in  which  we  are  engaged.  Still  greater  events 
may  be  just  ahead  of  us.  What  fate  or  fortune  awaits  jou  or  me,  in 
the  contingencies  of  the  times,  is  unknown  to  us  all.  We  may  meet 
again,  or  we  may  not.  But  as  a  parting  remembrance,  a  lasting 
memento,  to  be  engraven  on  your  memories  and  your  hearts,  T  warn  you 
against  that  most  insidious  enemy  which  approaches  with  her  syren 
song— "  Independence  first  and  liberty  afterwards."  It  is  a  false  de- 
lusion. Liberty  is  the  animating  spirit,  the  soul  of  our  system  of 
government,  and  like  the  soul  of  man,  when  once  lost,  it  is  lost  for- 
ever.    There  is  for  it  no  redemption  except  through  blood.     Never 


28 

for  a  moment  permit  yourselves  to  look  upon  liberty,  that  constitu- 
tional liberty  which  you  inherited  as  a  birthright,  as  subordinate  to  in- 
dependence. The  one  was  resorted  to  to  save  the  other.  Lot  them 
ever  be  held  and  cherished  as  objects  co-ordinate,  co-existent,  co- 
equal, co-evai  and  forever  inseparable.  Let  them,  stand  together 
"  through  weal  and  through  woe,"  and,  if  such  be  our  fate,  let  them 
and  us  all  go  down  together  in  a  common  ruin.  Without  liberty  I 
would  not  turn  upon  my  heel  for  independence.  I  scorn  all  indepen- 
dence which  does  not  secure  liberty.  I  warn  you  also  against  anoth- 
er fatal  delusion,  commonly  dressed  up. in  the  fascinating  language  of 
"  If  we  are  to  have  a  master,  who  would  not  perfer  to  have  a  Southern 
one  to  a  Northern  one?"  Use  no  such  language.  Countenance 
none  such.  Evil  communications  are,  as  corrupting  in  politics  as  in 
morals. 

"  Vice  is  a  monster  of  such  "hideous  mien, 

That  to  be  hated,  needs  but  to  be  seen. 

But  seen  too  oft,  familiar  with  her  face, 

We  first  endure,  then  pity,  then  embrace." 

I  would  not  turn  upon  my  heel  to  choose  between  masters.  I  was 
not  born  to  have  a  master  from  either  the  North  ;Or  South.  I  shall 
never  choose  between  candidates  for  that  office.  Shall  never  degrade 
the  right  of  suffrage  in  such  an  election.  I  have  no  wisn  or  desire  to 
J.ive  after  the  degradation  of  my  country,  and  have  no  intention  to 
survive  its  liberties,  if  life  be  the  necessary  sacrifice  of  their  mainte- 
nance to  the  utmost  of  my  ability,  to  the  bitter  end.  As  for  myself, 
give  me  liberty  as  secured  in  the  Constitution  with  all  its  guaranties, 
among  which  is  the  sovereignty  of  Georgia,  or  give  me  death.  This 
is  my  motto,  while  living,  and  I  want  no  better  epitaph,  when  I  am 
dead! 

Senators  and  Representatives :  the  honor,  .the  rights,  the  dignity, 
the  glory  of  Georgia  is  in  your  hands.  See  to  it  as  faithful  sentinels 
upon  the  watchtower,  that  no  harm  or  detriment  come  to  any  of  those 
high  and  sacred  trusts,  while  committed  to  your  charge.  [Immense 
cheers  and  applause.] 

EXTRACTS  FROM  THE  MESSAGE  OF  GOV. 'BROWN. 


THE  CURRENCY. 

The  late  action  of  the  Congress  of  the  Confederate  States  upon  the  subject  of 
the  currency  has  rendered  further  legislation  necessary  in  this  State' upon  that 
question.  It  cannot  be  denied  that  this  act  has  seriously  embarrassed  the  finan- 
cial s  stem  of  this  State,  and  has  shaken  the  confidence  of  our  people  in  either  the 
justice  of  the  late  Congress  or  its  competency  to  manage  our  financial  afi'airs. — 
Probably  the  history  ot  the  past  furnishes  few  more  striking  instances  of  unsound 
policy  combined  with  bad  faith. 

The  government  issu  s  its  Treasury  note  for  $100,  and  binds  itself  two  years  af- 
ter a  treaty  of  peace  between  the  Confederate  States  and  the  United  States,  to  pay 
the  bearer  that  sum  ;  and  stipulates  upon  the  face  of  the  note  that  it  is  fundable 
in  Confed  erate  States  stocks  or  bonds,  and  receivable  in  payment  of  all  public  duea 
except  expot  t  duties.  The  Congress,  while  the  War  is  still  progressing,  passes  a 
statute  that  this  bill  shall  be  funded  in  about  forty  days  or  one- third  of  it  6hall  be 


29  # 

repudiated,  and  that  a  tax  of  ten  per  cent  a  month  shall  be  paid  for  it  after  that 
time  by  the  holder,  and  it  shall  no  longer  be  receivable  in  payment  of  public  outs, 
and  if  it  is  not  funded  by  the  1st  of  January  next  the  whole  debt  is  repudiated. — 
Did  the  holder  take  the  note  with  any  such  expectation  ?  Was  thisitbe  contract, 
and  is  this  the  way  the  government  is  to  keep  its  faith  ?  If  we  get  rid  of  the  old 
issues  in  this  way  what  guaranty  do  we  give  for  better  faith  in  the  redemption  of 
the  next  issues  ?  Again,  many  of  the  notes  have  the  express  promise  on  their  face 
that  they  shall  be  funded  in  eight  per  cent  bonds.  When  ?  The  plain  import  is, 
and  so  understood  by  all  at  the  time  of  their  issue,  that  it  may  be  done  at  any  time 
before  the  dayiixed  on  the  face  of  the  note  for  its  payment.  With  what  semblance 
of  good  faith  then  does  the  government  before  that  time  compel  the  holder  to  re- 
ceive a  four  per  cent  bond,  or  lose  the  whole  d"bt?  and  what  better  is  this  than 
repudiation  ?  When  was  it  ever  before  attempted  by  any '  government  to  compel 
the  funding  of  almost  the  entire  paper  currency  of  a  country  amounting  t 
or  eight  hundred  millions  of  dollars  in  forty  days  ?•  This  is  certainly  a  new  chap- 
ter in  financiering. 

The  country  expected  the  imposition  of  a  heavy  tax,  and  all  patriotic  citizens 
were  prepared  to  pay  it  cheerfully  at  any  Reasonable  saciifice;  but  repudiation 
and  bad  faith  were  not  expected,  and  the  authors  of  it  cannot  be  held  gm,il 
0  The  expiring  Congress  took  the  precaution  to  discuss  the  measure  i; 
pion  ,•  so  that  the  individual  act  of  the  representative  could  not  reach  his  constit- 
uents, and  none  could  be  annoyed  during  its  consideration  by  the  murmurs  ot'pub- 
lic  disapprobation  being  echoed  back  into  the  Legislative  Hall.  And  to  make  as- 
surance doubly  sure,  they  fixed  the  day  for  assembling  of  their  successors,  at  a 
time  too  late  to  remedy  the  evil,  or  afford  adequate  redVeSfl  for  th»-  wrong. 

These  secret  sessions  of  Congress  are' becoming  a  blighted  curse  to  the  country. 
They  are  used  as  a  convenient  mode  of  covering  up  from  the  people,  such  acts  or 
expressions  of  their  representatives  as  will  not  bear  investigation  in  the  light  of 
day.  Almost  every  act  of  usurpation  of  power,  or  of  bad  faith,  has  been  conceiv- 
ed, brought  forth  and  nurtured,  in  secret  session.  It  I  mist  ike  not  the  British 
Parliament  never  discussed  a  single  measure  in  secret  session  during  the  whole  pe- 
riod of  tie  Crimean  War.  But  it  it  is  necessary  to  discuss  a  few  important  mili- 
tary measures,  such  as  may  relate  to  the  movement  of  armies,  &c,  in  secret  ses- 
sion, it  does  not  follow  that  discussions  of  questions  pertaining  to  the  currency,  tho 
suspension  of  the  writ  of  habeas  corpus,  and  the  like,  should  all  be  conducted  in 
secret  session.  The  people  should  require  all  such  measures  to  be  discussed  with 
open  doors,  and  the  press  should  have  the  liberty  of  reporting  and  freely  criticis- 
ing the  acts  of  our  public  servants  In  this  way  the  reflection  of  the  popular  will 
back  upon  the  representatives,  would  generally  cause  the  defeat  of  such  unsound 
measures,  as  those  which  are  fastened  upon  the  country  in  defiance  of  the  will  of 
the  people. 

*  *  *  *  *  *  .  * 

SUSPENSION  OF  THE  HABEAS  CORPUS. 

I  cannot  withhold  the  expression  of  the  deep  mortification  I  feel  at  the  late  ac- 
tion of  Congress  in  attempting  to  suspend  the  privilege  of  the  writ  of  habeas  cor- 
pus, and  to  confer  upon  the  President  powers  expressly  denied  to  him  bv  the  Con- 
stitution of  the  Confedurate  States.  Under  pretext  of  a  nece-sity  which" nur  whole 
people  know  do*s  not  exist  in  this  case,  whatever  may  have  been  the  motives,  our 
Congress,  with  the  absent  and  at  the  request  of  the  Executive,  has"  struek'a  fell 
blow  at  the  liberties  of  the  people  of  these  States. 

The  Constitution  of  the  Confederate  States  declares  that  "The  privilege  of  the 
writ  of  habeas  corpus  shall  not  be  suspended,  unless  when  in  casts  of  rebellion  or 
invasion  the  public  safety  may  require  it."  The  power  to  suspend  the  habeas  cor- 
pus at  all  is  derived,  not  from  express  and  direct  delegation,  but  from  implication 
only,  and  an  implication  can  never  be  raised  in  opposition  to  an  express  restric- 
tion. In  case  of  any  conflict  between  the  two,  an  implied  power  must  always  yield 
to  express  restrictions  uoon  its  exercise.  The  power  to  suspend 'the  privilege  of 
the  writ  of  habeas  corpus  derived  by  implication- must  therefore  be  always  limitei 
by  the  express  declaration  in  the  Constitution  that : 

•'The  light  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and  effects, 
against  unreasonable  searches  and  seizures  shall  not.be  violated  ;  and  no  warrants 
shall  issue  but  upon  probable  cause,  supported  by  04th  or  affirmation,  and  partic- 
ularly describing  the  place  to  be  searched,  and  the  persons  or  things  to  be  s^iztd," 
and  the  further  declaration  that  "no  person  shall  be  deprived  of  life,  liberty  or 
property,  without  due  process  of  law."     And  that, 

"In  all  criminal  prosecutions  the  accuser  shall  enjoy  the  right  of  a  speedy  and 


so 

public  trial  by  an  impartial  jury  of  the  State,  or  District  where  the  crime  shall 
have  been  committed,  which  district  shall  hare  been  previously  ascertained  by  law, 
and  to  be  informed  of  the  nature  and  the  cause  of  the  accusation;  to  be  confronted 
with  tbe  wituesses 'against  hiui ;  to  have  compui  ory  process  tor  obtaining  wit- 
nesses in  his  favor,  and  to  have  the  assistance  of  counsel  for  his  defence." 

Thus  it  is  an  express  guaranty  ot  the  Constitution  that  the  "persons"  of  the  peo- 
ple shall  be  s. cure,  and  "no  warrants  shall  issue  but  upon  probable  cause,  sup- 
ported by  oath  or  affirmation,"  particularly. describing  "fhe  persons  to  be  seized;" 
that  "no  person  shall  be  deprived  ot  liberty  without  due  process  of  law,"  and  that 
in  "all  criminal  prosecutions  the  accused  shall  enjoy  the  right  of  a  special  and  pub- 
lic trial  by  an  impartial  jury." 

The  Constitution  also  defines  the  powers  of  the  Executive,  which  are  limited  to 
those  delegated,  among. which  there  is  no  one,  authorizing  him  to  issue  warrants 
or  other  arrests  of  persons  not  in  actual  military  service  ;  or  to  sit  as  a  judge  in 
any  case,  to  try  any  person  for  a  Criminal  offense,  or  to  appoint  any  court  or  tri- 
bunal to  do  it,  not  provided  for  in  the  Constitution  as  part  of  the  judiciary.  The 
power  to  issue  warrants  and  try  persons  under  criminal  accusations  are  judicial . 
powers  which  b-i.oug  under  the  Constitution,  exclusively  to  the  judiciary  and  not 
to  the  Executive.  His  power  to  order  arrests  as  Commander-in-Chief  is  strictly 
a  military  power,  and  is  confined  to  the  arrests  of  persons  subject  to  military  pow- 
er, as  to  the  arrests  of  person  in  the  army  or  navy  of  the  Confederate  States  ;  or 
in  the  militia,  when  in  the  actual  service  of  the  Confederate  States,  and  does  not 
extend  to  any  persons  in  civil  life,  unless  they  be  followers  of  tbe  camp  or  within 
the  lines  of  the  army»  This  is  clear  from  that  provision  of  the  Constitution  which 
declares  that, 

"  No  person  shaU  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentiment  or  indictment  of  a  grand  jury,  except  in  cases 
Arising  in  the  land  or  naval  forces,  or  in  tbe  militia  when  in  actual  service  in  time 
of  war  or  public  danger/'  But  even  here  the  power  of  the  President  as  Comman» 
der  in-Chief  is  not  absolute,  as  his  powers  and  duties  in  ordering  arrests  of  per- 
sons in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual  service,  are  clear- 
ly defined  by  the  rules  and  articles  of  war  prescribed  by" Congress.  A»y  warrant 
issued  by  trie  President,  or  any  arrest  made  by  him  or  under  his  order,  of  any 
person  in  civil  life,  and  not  subject  to  military  command,  is  illegal  and  in  plain 
violation  of  the  Constitution;  as  it  is  impossible  lor  Congress  by  implication  to 
confer  upon  the  President  the  right  to  exercise  powers  of  arrests,  expressly  for- 
bidden to  him  by  the  Constitution.  An  effort  on  the  part  ot  Congress5  to  do  thia 
is  but  an  attempt  to  revive  the  odious  practice  of  ordering  political  arrests,  or  is- 
suing letters  de  cachet  by  royal  prerogative  so  long  since  renounced  by  our  English 
ancestors,  and  the  denial  of  the  right  of  the  constitutional  judiciary  to  investi- 
gate such  cases,  and  the  provision  for  Creating  a  court  appointed  by  the  Execu- 
tive and  changeable  at  his  will,  to  take  jurisdiction  of  the  same,  and  are  in  viola* 
tioo  of  the  great  principles  of  Magna  Cbarta,  the  Bi  1  of  Rights,  the  habeas  cor- 
pus act,  and  the  Constitution  of  the  Confederate  States,  upon  which  both  English 
and  American  liberty  rest;  and  are  but  an  attempt  to  revive  the  odious  Star 
Chamber  court  of  England,  which  in  the  hands  of  wicked  kings  was  ufed  for  ty- 
rannical purposes  by  the  crown  until  it  was  finally  abolished  by  acts  of  Parlia- 
ment, of  16th  Charles  the  first,  which  went  into  operation  on  the  1st  of  August, 
1641.  This  act  has  ever  since  been  regarded  as  one  of  the  great  bulwarks  of  Eng- 
lish liberty  ;  and  as  it  was  passed  by  the  English  Parliament  to  secure  our  English 
ancestors  against  the  very  same  character  of  arbitrary  arrests  which  the  late  act 
of  Congress  is  intended  to  authorize  the  President  to  make,  I  append  a  copy  of  it 
to  this  message,  with  the  same  italics  and'small  capital  letters  which  are  used  in 
the  printed  copy  in  the  book  from  which  it  is  taken  It  will  be  seen  that  the  court  of 
the  "  Star  Chamber,"  which  was  the  instrument  in  the  hands  of  the  English  king, 
for  invesngating  his  illegal  arrests  and  carrying  out  his  arbitrary  decrees,  was 
much  more  respec'able  on  account  of  tbe  character,  learning  and  ability  of  ita 
members  than  the  Confederate  Star- Chamber  or  court  of  "  proper  officers."  which 
the  act  of  Congress  gives  the  President  power  to  appoint  to  investigate  his  illegal 
arrests.  .  <, 

1  am  aware  of  no  instance  in  which  the  British  king  has  ordered  the  arrest  of 
any  person  in  civil  life,  in  any  dither  manner  than  by  judicial  wan  ant,  issued  by  the 
established  c  mrt  of  the  ream  ;  or  in  which  he  has  suspended  or  attempted  to  8m> 
pend  the  privilege  of  the  writ  of  habeas  corpus,  since  the  Bill  of  Rights  and  ace  of 
settlement  passed  in  1689.  To  attempt  this  in  1864  would  cost  the  present  reign» 
ing  Queen  no  less  price  than  her  crown. 


Si 

*  *  *  * 

By  an  examination  of  the  act  ot  Congress  now  under  consideration,  it  will  be* 
Seen  that  it  is  no'  an  act  to  suspend  the  privilege  o>  the  writ  of  habeas  co  pus  in  case 
«f  warrant,  issues  by  judicial  authority  ;  but  t.:c  main  purpose  of  the  act  seems  to 
be  to  authorize  the  President  to  issue  warrant?  supported  by  neither  oath  nor  af- 
firmation and  to  make  ar-ests  of  persons  not  in  military  service,  upon  charges  of 
a  n  .lure  proper  for  investigation  in  the  judicial  tribunal*  only,  and  to  prevent  th* 
Courts  from  enquiring  into  such  arrests,  or  granting  redo/  against  such  illegal 
usurpations  of  power,  which  are  in  direct  and  palpable  violation  of  the  Coneti- 
tation 

****** 
(  This  then  is  not  an  act  to  suspend  the  privilege  of  the  writ  of  baaeas  corpus,  in  the 
manner  authorised  by  implication  by  the  Cousti  utidnj  but  ic  is  an  act  to  au- 
thorize the  President  to  make  illegal  and  unconstitutional  arrests,  in  ca^cs  which 
the  Conetitotion  gives  to  lua  judiciary,  and  denies  to  the  Executive  j  and  to  pro- 
hibit all  judicial  interference  for  the  relief  of  tbe  citizen,  when  tvranniz-d  over  by 
illcgal  arrest,  under  letters  de  cachet  issued  by  Exe^'itive  authority. 

Instead  df  the  legality  of  the  arrest  being  examined  in  the  judicial  tribunals  ap- 

£-oirted  by  the  Constitution,  it  is  to  be  examined  in  the  Confederate  bUM  hum- 
or; that  is,  by  (XficeM  appointed  by  the  President.  Wh-.  saj  that  the  "  Pre«i- 
•dentshali  cause  proper  pmeert  to  investigate  "  the  legality  "of  arrests'  made  by 
3iim?  Why  not  permit  the  judges,  w  hose  constitutional  right  and  dutv  it  is  to 
do  it  ? 

We  are  witnessing  with  too  uinch  indifference  assumptions  of  power  by  the 
ConlederaU  government  which  in  ordinary  times  would  arouse  the  whole  country 
to  indignant  rebuke  and  stern  resistance.  History  teacbis  ua  that  submission  t«f 
one  encr»aohweuc  upon  constitutional  liberty  is  always  followed  by  another,  and 
we  sb  mid  nor.  forget  that  important  rights,  yielded  to  those  in  power  without  re- 
buke o#*prct2St.  are  never  recovered  by  the  people  without    evulution. 

If  this  act  is  acquiesced  ic,  the  President,  the  Secretary  of  War,  and  the  com- 
mander of  the  Trans  Mississippi  department  under  the  control  of  the  President, 
each  has  the  powW  conferred  by  Congress,  to  imprison  whomsoever  ho  chooses  t 
and  it  is  onlj  nee  <ary  to  allege  that  it  is  done  on  accourt  of  "  treas  mab'e  efforts" 
or  of  ''conspiracies  to  i  eaiat  the  lawful  authority  of  the  Confederate  States,' '  or  for 
"giving  aid  antl  comfort  to  the  enemy,"  or  other  of  the  causes  of  arrest  enumer- 
ated in  the  statute-,  and  have  a  subaltern  to  hie  his  affidavit  accordingly,  after  tbe 
arrest  if  a  Writ  of  habeas  corpus  is  sued  out,  and  no  Court  dare  inquire  into  the 
cause  pf  the  imprisonment.  '1  he  statute  makes  the  President  and  not  the  courts 
thejud^eof  the  sudiciencj  of  the  cause  for  his  own  acts.  Either  of  yarn  or  any 
ether  citizen  ot  Georgia,  may,  at  any  momeut,  (as  Mr.  V.  lianaigharn  was  ill 
Ohio,)  be  dragged  from  your  homes  at  midnight  by  armed  lorce,  and  imprisoned 
at  tb.3  will  of  the  President,  upon  the  pretext  tb&t  you  have  been  guilty  of  some 
oden^e  of  the  chai  actor  above  named,  and  no  court  known  to  our  judiciary,  can 
inquire  into  the  wrong  or  grant  relief 

When  such  bold  strides  towards  military  Jespotism  and  absoiute  authority  are 
taken  by  those  in  whom  we  have  confided,  and  who  have  been  placed  in  high  offi- 
cial position,  to  guard  and  protect  constitutional  and  persona]  liberty,  it  is  tbe 
duty  of  every  patriotic  citizen  to  sound  the  alarm,  and  of  the  State  Legislatures 
to  say*in  thunder-tones,  to  those  who  assume  to  govern  us  by  absolute  power,  that 
there  is  a  point  beyond  which  freemen  will  not  permit  encrachmeat3  to  go. 
*>•  *  *  *  *  * 

Can  the  President  no  longer  trust  the  judiciary  with  the  exercise  of  the  legiti- 
mate powers  confer. cd  Upon  it  by  the  Constitution  and  laws?  In  what  instance 
have  the  grave  and  dignified  Judges  proved  disloyal  or  untrue  to  our  cause? — 
When  have  tuey  embarrassed  the  government  by  turning  loose  traitors,  skulker? 
or  spies?  Have  the}  not  in  every  instance  given  the  government  the  benefit  ot" 
their  doubts  in  sustaining  its  action,  though  they  might  thereby  seem  to  encroach 
upon  the  rights  of  the  Mates,  and  for  a  time  deny  substantial  justice  to  the  peo- 
ple ?    Then  why  this  implied  censure  upon  them  ? 

What  justification  exists  uow  tor  this  most  monstrous  deed,  svhich  did  not  exist 
during  th.-  first  or  second  year  of  tbe  war,  unless  it  be  found  in  the  fact  that  tho«« 
in  power  have  found  the  people  ready  to  submit  to  every  encroachment  rather 
than  make  an  isiue  with  the  government,  while  we  are  at  war  with  the  enemy, 
and  have  on  that  account  been  emboldened  to  take  the  step  which  is  intended  to 
make  the  President  as  absolute  in  hie  -power  of  arrest  and  imprisonment  as  th* 


32 

Czar  of  all  the  "Russians  ?  What  reception  would  the  members  of  Congress  from 
the  States  have  met  in  1861,  had  they  returned  to  their  constituents  and  informed 
them  that  they  had  suspended  the  habeas  corpus  and  given  the  President  the  power 
to  imprison  the  people  of  these  States  with  no  restraint  upon  his  sovereign  will  ?' 
"Why  i?  .ibei  t\  less  sacred, now  than  it  was  in  1861?  And  what  will  we  have 
trained  when  we  have  ae&ieVed  our. independence  of  the  Northern  States,  if  in 
our  effort  to  do  so  we  have  permitted  our  form  of  government  to  be  subverted,  and 
have  1-  st  C    istitutional  liberty  at  home  ? 

The  hope  of  the  country  now  rests  in  the  new  Congress  soon  to  assemble. '  They  • 
must  maintain  '"ir  liberties  against  encroachment  and  wipe  this  and  all  such  stains 
Irani  the  statute  book,  or  the  Sun  of  Liberty  will  soon  set  in  darkness  and  blood. 
*  *  *  '     *  *  *     »  . 

H&W   PEACE  SHOULD  BE  SOUGHT. 

In  view  of  these  difficulties  it  may  be  asked— When  and  how  is  this  war  to  ter- 
minate ?  it  is  impossible  to  say  when  it  may  terminate,  but  it  is  eas)  to  gay  how 
it  will  end.  We  do  not  seek  to  conquer  the  Northern  people,  and  if  we  are  true 
to  ourselves  they  can  never  conquer  us.  We  do  not  seek  to  take  from  them  the 
rijrht  of  self  government,  or  to  govern  them  without  their  consent;  and  they  have 
not  force  enough  to  govern  us  without  our  consent,  or  to  deprive  us  of  the  right 
to  govern  ourselves.  The  blood  of  hundreds  of  thousands  may  yet  be  spilt  and 
the  war  will  not  s:  ill  be  terminated  by  force  of  arms.  Negotiation  will  finally  ter- 
minate it.  The  pen  of  the  statesman,  more  potent  than  the  sword  of  the  warrior, 
must  do  what  tn.   latter  has  failed  to  do. 

But  I  may  be  asked  how  negotiations  are  to  commence,  when  President  Lincoln 
refuses  to  receive  commissioners  sent  by  us  and  his  Congre.-s  resolves  to  hear^no 
proposition  for  peace.  I  reply. that,  in  my  opinion,  it  is  our  duty  to  keep  it  always 
i  de  Northern  people  and  the  civilized  world,  that  we  are  ready  to  nego- 
tiate ior  peace  whenever  the  people  and  government  of  the  Northern  States  are 
prepared  to  recognise  the  great  fundamental  principles  of  the  Declarationn  of  In- 
dependence, maintained  by  our  common  ancestry — the  right  of  all  self-govern- 
ment, and  the  sovereignty  of  the  Stntes.  In  my  judgment,  it  is  the  duty  of  our 
government,  after  each  important  victory,  achieved  by  our  gallant  and  glorious 
armies  on  die  .battle-field)  to  make  a  distinct  proposition  to  the  No  -thorn  govern- 
ment for  a  peace  upon  these  terms.  By  dojng  this,  if  the  proposition  is  declined 
by  them,  we  will  hold  them  up  Constantly  in  the.  wrong,  before  their  own  people 
and  the  judgment  of  mankind. 

If  they  Tefuse*to  receive  the  commissioners  who  bear  the  proposition,  publish  it 

in  the  ■  ,  and  let   the  conduct  of  their  rulers  be  kno wn    to  the  people  y 

and  there  is  i  easonaole  ground  to  hope  that  the  time  may  not  be  far  distant  when 

a  returning  s-ensi  of  justice,  and  a  desire  for  self-protection^against  desj  otistn  at 

home    I  ttie  people  of  the  Northern   Stated  to  hnirl  from  power  those 

•:iy  t  lie  fundamental  principle,  upon  which  their  own  liberties'^  rests>  ana 

fin  never  be  satiated  with  human  blood.     Let  us  stand  on  no  delicate  point 

ette  or  diplomatic  ceremony.     If  the  proposition  is  rejected  a  dozen  times, 

let  us  tender  it  again  after  the  next  victory— that  the  world  may  be  reassured, 

to  month,  that  we  are  not  responsible  for  the  continuance  of  thisde- 

vastation  and  cam: 

Let  it  bo  repeated  again  and  again,  to  the  Northern  people,  that  all  we  ask  is 
that  tb  the  great  principle  «pon.  which  their  own  government  rests—' 

the-  sovereignty  pf  the  States  ;  and  let  our  own  people  hold  our  own  government  to 
a  stri'ct  account  for  every  encroachment  upon  this  vital  .principle.  " 

Herein  lies  the  simple  solution  of  all  these  troubles. 

If  there  be  any  doubt,  or  any  question  of  doubt,  as  to  the  sovereign  will  of  any 
one  of  all  the  States  of  this  Confederacy,  or  of  any  border  State,  whose  institutions! 
are  similar  to  curs,  not  in  the  Confederacy,  upon  the  subject  of  their  present 
'or  fu'ure  alliance,  let  all  armed  force  be*  withdrawn,  and  let  that  sovereign 
•will  be  fairly  expressed  at  the  ballot  box  by  the  legal  voters  of  the  States,  and 
i;t  all  piriies  abide  by  the  decision.  ■  . 

Let  ( ..el   State  have  and  freely  exe-cise  the  right  to  determine  its  own  destiny, 
in  its  own  way.     This  is  all  that  we  have  been  struggling  for  from  the  beginning. 
It  is  a  principle  that  secures   "rights  inestimable  to  freemen  and  formidable  t« 
tyrants  only." 
■  -  *  *  *  *  *  * 


JOSEPH  E-  BROWN- 


Hollinger  Corp. 
pH  8.5 


